(Photo
by
Alex
Wong/Getty
Images)
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.
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.
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.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
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