Courts

Sam Alito Uncorks One Of The Dumbest Textualist Arguments In Supreme Court History

Alito tries to advance textualist argument for letting women die in emergency rooms, fails.

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A textualist would have little trouble dispensing with Moyle v. United States. Congress passed and President Reagan signed — yes, that Ronald Reagan who used to be the guiding light of the conservative movement — the Emergency Medical Treatment and Active Labor Act, requiring any hospital that takes Medicare funds, which is almost every hospital, to provide emergency medical treatment to anyone who shows up at the emergency room.

The law’s purpose — if you’re one of those dirty hippies who care about legislative history — was to stop hospitals from refusing service to patients because the bean counters feared the patient wouldn’t be able to pay.

Importantly, the law requires hospitals to perform abortions if terminating a pregnancy is the medically necessary treatment to protect a patient from death or severe physical harm and includes a provision clarifying that this law supersedes any contrary state law. But Idaho has a broad abortion ban and wants to criminally prosecute hospitals for following federal law.

The principled textualist would say that Idaho’s law must give way in the case of emergency conditions unless Idaho’s hospitals want to stop accepting Medicare. It’s not even a particularly close call.

Sam Alito is not, however, a principled anything. His commitment to “textualism” amounts to playing out-of-context definitions like Magic: The Gathering cards. Like when he waved meanings ripped from Webster’s and Black’s Law Dictionary to explain how he didn’t violate bedrock government ethics rules only to overlook the actual words of the regulations and statute itself.

So it wasn’t much of a surprise when Alito attempted to hijack this morning’s oral argument to assert one of the dumbest textualist arguments in the Court’s illustrious — or dubious — history.

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JUSTICE ALITO: We’ve now heard — let’s see — an hour and a half of argument on this case, and one potentially very important phrase in EMTALA has hardly been mentioned. Maybe it hasn’t even been mentioned at all. And that is EMTALA’s reference to the woman’s “unborn child.” Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase “unborn child”?

….

— have you seen abortion statutes that use the phrase “unborn child”? Doesn’t that tell us something?

Sure YOUR statute legalizing abortion uses the term “unborn child,” but other statutes written decades later use that phrase to ban abortion so… QED!!!

While Alito patted himself on the back over his new expressio unius est expressio insanus standard, Solicitor General Elizabeth Prelogar calmly explained that it did tell us something, but given the vagaries of linear time it doesn’t tell us anything Alito wants to hear:

GENERAL PRELOGAR: It’s not an odd phrase when you look at what Congress was doing in 1989. There were well-publicized cases where women were experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren’t treating them.

The original text of the statute required emergency services for a mother in physical jeopardy. Some hospitals tried to skip out on performing emergency services where, say, a fetus was in severe distress, so Congress clarified that emergency rooms couldn’t get cute and tell a poor pregnant woman that they sure would love to untangle that umbilical cord, but since she doesn’t have insurance and isn’t in trouble herself they would prefer she take her problems outside.

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JUSTICE ALITO: Well, let’s walk through the provisions of the statute that are relevant to this issue regarding the status and the potential interests of an unborn child. Under (b)(1), if a woman goes to a hospital with an “emergency medical condition” — that’s the phrase — the hospital must either stabilize the condition or, under some circumstances, transfer the — the woman to another facility.

So we have this phrase, “emergency medical condition,” in that provision. And then, under (e)(1), the term “emergency medical condition” is defined to include a condition that places the health of the woman’s unborn
child in serious jeopardy.

So, in that situation, 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.

“You say that emergency rooms have to have to set a simple broken arm, but gangrene would also be defined as an emergency medical condition… And it seems that the plain meaning is that the hospital must try to treat arms, but performing an amputation is antithetical to that duty.” Prelogar was, under the circumstances, a model of patience in explaining that just because hospitals can’t dump patients on the street if a fetus is in medical danger does not, in fact, mean the hospital has an obligation to let pregnant women bleed out.

The law doesn’t even require the patient to accept any treatment! Just that hospitals have to offer treatment to poor people. Twisting that into a legal obligation to actually perform or deny services to a patient runs far, far afield of anything in the text of the statute.

But we’re not talking about principled textualists here.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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