Alito reignites fetal rights debate in Idaho abortion case

April 26, 2024

The Supreme Court justice who authored the Dobbs ruling overturning Roe v. Wade jumped headlong Wednesday into the debate about whether a fetus is entitled to the same rights as a person.  

Abortion-rights advocates were concerned ahead of arguments that the case about whether Idaho’s abortion ban violated a federal emergency care law might be used to advance the fight for fetal rights.  

The Department of Justice argued that the Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals that take Medicare funds to provide stabilizing treatment to a patient in an emergency, even if that treatment is an abortion.  

Idaho said the law doesn’t mention abortions, and the state has set its own standard: a total ban on abortions except when it is needed to save a pregnant woman’s life, but not to prevent serious risks to her health.  

As the Supreme Court wrestled for the first time with the fallout of a state abortion ban since it overturned Roe v. Wade in 2022, Justice Samuel Alito seemed to endorse the idea that a fetus needs the same “stabilizing treatment” as the pregnant person. 

The conservative justice zeroed in on the law’s reference to an “unborn child.” 

“Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” Alito asked Solicitor General Elizabeth Prelogar. 

“The hospital must stabilize the threat to the unborn child, and it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty,” Alito said, adding that the hospital has a duty to protect “the interests of the unborn child.” 

Prelogar countered that Alito’s reading of the statute was “erroneous” and the hospital only has a duty to stabilize the pregnant women.  

Congress amended the law to add the phrase “unborn child” in order to expand protections for pregnant people and ensure a woman got the treatment she needed, Prelogar argued. 

“Congress wanted to be able to protect her in situations where she’s suffering some kind of emergency and her own health isn’t at risk, but the fetus might die,” Prelogar said, in instances like a prolapse of the umbilical cord in the cervix where the fetus is in distress, but the woman is not. 

“Hospitals otherwise wouldn’t have an obligation to treat her, and Congress wanted to fix that,” she said.  

Anti-abortion groups have long argued that life begins at conception, and some like The Heritage Foundation have promoted views that the 14th Amendment can be interpreted to ban abortion nationwide. Granting a fetus the same rights as a person would mean abortion for any reason is murder. 

“It’s not surprising to hear some of the justices expressed sympathy for fetal personhood. This was a significant motivating part of the efforts to overrule Roe vs. Wade,” said Leah Litman, a professor at the University of Michigan Law School. 

“This theory would just radically reshape the health care and reproductive rights landscape as we know it, because it would just mean no abortions anywhere in the United States, period, and also jeopardize other forms of reproductive care as well,” Litman said.  

The idea of fetal personhood gained steam when Roe was overturned, but dozens of states consider a fetus to be a person at some point during pregnancy.  

At least 19 states have either extremely broad personhood language in their laws or somehow define “person” to include a fetus or “unborn child,” according to a report from the liberal organization Pregnancy Justice. 

Abortion-rights advocates said Alito has been laying the groundwork for federal fetal personhood since his opinion in Dobbs, though he did not take an explicit position on the issue. 

“According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right — to live — at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that ’theory of life,’” he wrote. 

The court also sidestepped the issue a few months after Dobbs, when it declined to hear a case that asked the justices to declare whether a fetus has constitutional protections.  

Litman said the justices could be taking incremental steps toward fetal personhood protections, essentially nudging the law in that direction rather than declaring it outright.  

“I don’t know that the Court wants to do this, like, immediately, two years after Dobbs in the immediate lead up to an election,” she said. “I think the strategy is like, in addition to just asking for full blown constitutional fetal personhood, why not do a few things that move us toward that end.” 

On a call with reporters, Alexa Kolbi-Molinas with the American Civil Liberties Union’s Reproductive Freedom Project said fetal personhood is the goal for conservatives. 

“Whether or not we see a decision in this case that discusses fetal personhood or recognizes these issues or excludes pregnant people from the protection of federal law. We know that is what these extremist anti-abortion politicians are pushing and they’re not going to stop,” she said.  

During arguments on Wednesday, it wasn’t just Alito asking about the “unborn child” language in the law. 

Justice Neil Gorsuch asked Idaho’s attorney Joshua Turner what to do with EMTALA’s definition of “individual” to include both the woman and the unborn child. 

Turner said it wasn’t the state’s position that EMTALA prohibited abortions, because in some states abortion can be allowed as stabilizing treatment. 

But he said adding “unborn children” into the law was deliberate. 

“It would be a very strange thing for Congress to expressly amend EMTALA to require care for unborn children … and yet also be mandating termination of unborn children,” Turner said.