The Supreme Court Is About To Debate Whether States Can Outlaw Life-Saving Abortions

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The Supreme Court this week will debate whether states have the power to outlaw life-saving abortions in hospital emergency rooms.

The court will hear Idaho v. United States on Wednesday to determine if the narrow exceptions in Idaho’s near-total abortion ban override federally mandated requirements for physicians under the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires hospitals that participate in Medicare — the majority of hospitals in the country — to offer abortion care if it’s necessary to stabilize the health of a pregnant patient while they’re experiencing a medical emergency.

The Department of Justice sued Idaho when the abortion ban first went into effect in 2022 because the state law is in direct conflict with EMTALA.

“This case could radically alter how emergency medicine is practiced in this country and make pregnant people second-class citizens in America’s emergency rooms,” Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, told reporters on a press call last week.

Under the Supremacy Clause of the Constitution, federal law by default overrides state law. But the Supreme Court’s Dobbs decision, which repealed Roe v. Wade, left regulation of abortion to the states.

The decision will have far-reaching consequences and could give other states with narrow exceptions in abortion bans the go-ahead to adopt Idaho’s approach.

Several states, including Texas and South Dakota, have near-total abortion bans in effect that have exceptions if the pregnant patient’s life is at risk, but not if the patient’s health is at risk, conflicting with EMTALA.

“This ruling on EMTALA is going to determine — in not just Idaho, but probably in at least 10 other states — whether women experiencing medical emergencies in those states are able to get necessary care, when an abortion is that necessary, stabilizing care,” Idaho House Minority Leader Ilana Rubel (D) told reporters last week.

This case could radically alter how emergency medicine is practiced in this country and make pregnant people second-class citizens in America’s emergency rooms.Alexa Kolbi-Molinas, ACLU Reproductive Freedom Project

The Idaho state legislature passed the near-total abortion ban at the center of this case in 2020, two years before the Supreme Court repealed Roe. Its “trigger ban,” so named because it was set to take effect the moment Roe was repealed, is one of the most extreme in the country. Medical staff and physicians can be charged with a felony and sentenced to two to five years in prison if they provide illegal abortion care. The law also has a fetal non-viability provision, meaning that even if a fetus dies in utero, the pregnancy must still be carried to term unless doing so would also kill the mother.

The Supreme Court case, however, focuses on one of the ban’s three narrowly defined exceptions: when an abortion is “necessary to prevent the death of the pregnant woman.”

Federal law states that physicians are legally required to offer abortion in that scenario, but Idaho’s law is so narrow that it only allows physicians to perform an abortion when death is imminent. Those added delays could leave patients with long-term health conditions such as uterine hemorrhage (requiring a hysterectomy) or kidney failure that requires lifelong dialysis — if the procedure is performed in time to save their lives in the first place.

There have been dozens of reports of pregnant women across the country — in Texas, Florida, Oklahoma and elsewhere— who were denied care because they weren’t close enough to death to require medical intervention.

Pregnant people frequently go to emergency departments for health concerns that both are and are not related to pregnancy, said Sara Rosenbaum, a professor at George Washington University and a leading scholar on EMTALA.

“What Idaho has done has been to make pregnant people radioactive generally,” Rosenbaum, who played a critical role in passing EMTALA during the Reagan administration, told reporters last week. “It is a sad but true fact that you can have a medical emergency that may have nothing to do with pregnancy, but in treating that emergency … the consequence could be a loss of a pregnancy.”

Dr. Jim Souza, chief physician executive of St. Luke’s Health System in Idaho, told reporters on a call last week that hospital staff have been forced to airlift women out-of-state to get emergency abortions. That should be completely unnecessary, Souza said, because St. Luke’s is the largest and best-equipped hospital in the state for emergency medical complications.

Is she sick enough? Is she bleeding enough? Is she septic enough?… When the guessing game gets too uncomfortable, we transfer the patients out, at a very high cost, to another state where the doctors are allowed to practice medicine.”Dr. Jim Souza, chief physician executive of St. Luke’s Health System

During 2023, when the ban on health saving abortions was not in effect due to litigation,St. Luke’s had to transfer one pregnant patient out-of-state for emergency care, Souza said. In the six months since the law has been in effect, six pregnant patients have been transferred out-of-state. If that pace continues, Souza estimated, there will be around 20 patients a year who would need to be airlifted out of state because of pregnancy complications.

“Before August of 2022, we practiced medicine and acted as quickly as possible to preserve the mom’s health and future reproductive capacity,” Souza said, referring to when the trigger ban went into effect.

“Since then, there’s a lot of second-guessing and hand-wringing: Is she sick enough? Is she bleeding enough? Is she septic enough? For me to do this abortion and not risk going to jail and losing my license. And when the guessing game gets too uncomfortable, we transfer the patients out, at a very high cost, to another state where the doctors are allowed to practice medicine.”

Due to the threat of criminal and civil punishment facing physicians, the state has lost nearly a quarter of its OB-GYNs and 55% of its maternal fetal health specialists, according to Rubel, the state House Minority Leader. Three maternity wards have shut down, and Idaho has become one of the largest maternal health care deserts in the country.

Idaho has also seen a 50% drop in applicants for OB-GYNs to come to the state, Rubel said.

“It’s scary to think about all the reasons your career might end before it even starts,” said Rory Cole, a fourth-year medical student in Idaho who is about to start her residency in family medicine.

“We work so hard to be better for our patients, to know the right thing to do for them, how to make them feel more comfortable,” Cole added. “To be in this situation in which all of a sudden now we’re the villains in this? … How did I work so hard to end up here?”

The DOJ sued Idaho in August 2022, and a U.S. District Court sided with the agency, granting a preliminary injunction on the ban on life-saving abortions. Idaho appealed the case to the 9th Circuit Court of Appeals and filed an emergency request for the U.S. Supreme Court to review the case and allow the injunction to be lifted. In January, the Supreme Court ruled it would review the case and allowed the law to go into effect after two years of litigation.

Alliance Defending Freedom, the same far-right conservative group currently trying to dismantle access to abortion pills, is representing the state of Idaho in the Supreme Court case. A ruling is expected sometime in June.

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