The challenge concerning Idaho hospitals’ obligation to provide abortions during medical emergencies would have national ripple effects.

By Alice Miranda Ollstein and Josh Gerstein

04/24/2024 05:00 AM EDT

The Supreme Court on Wednesday will consider — for the first time since it overturned Roe v. Wade — whether an individual state’s abortion ban is constitutional.

The justices will hear arguments on whether federal law requires emergency room physicians in Idaho to perform abortions to stabilize pregnant patients experiencing a medical crisis despite the state’s near-total prohibition on the procedure, which only allows doctors to end a pregnancy when the mother’s life is in danger.

It’s the second major abortion case of the term, following last month’s arguments over the FDA’s regulation of the widely used abortion pill mifepristone, and the latest example of how overturning Roe and returning abortion rights to the states did not keep the courts out of the fray, as some justices had hoped. Decisions in both cases are expected in June.

The Idaho case homes in on the clash between red states’ desire to ban nearly all abortions and President Joe Biden administration’s efforts to preserve some access to the procedure, and the arguments come amid a roiling national debate on the issue. And it comes as doctors around the country plead for clarity on the parameters of the medical emergency exemptions to state bans, warning that vague definitions of “life-threatening” and the prospect of criminal charges are creating a chilling effect that deters them from providing needed care in patients’ most vulnerable moments.
What will Idaho officials try to prove?

Idaho officials argue that the Biden administration’s interpretation of the decades-old Emergency Medical Treatment & Labor Act, known as EMTALA, undermines the state’s ban and would make it too easy for patients to get a medically unnecessary abortion. Attorneys for the state need to convince the high court that the Biden administration is trying to use EMTALA as a way around the justices’ 2022 decision to end the federal right to abortion. By centering their arguments around state sovereignty, they may win favor from conservative justices skeptical of federal power.

The state officials also argue in their legal briefs that because EMTALA never specifically mentions abortion, and the Reagan-era law includes protections for fetuses, it can’t be read as requiring doctors to perform the procedure — even in medical emergencies. A ruling for the Biden administration, they argue, would open the door to the government citing EMTALA to force hospitals to provide other treatments that violate state laws, such as prescribing medical marijuana.

Idaho attorneys also need to counter accusations that strict enforcement of its near-total abortion ban harms patients — many of whom have been forced to wait days for care or cross state lines while experiencing a serious pregnancy complication over the last two years — and exacerbating existing provider shortages by deterring doctors and medical residents from practicing there.
What will the Biden administration try to prove?

Arguing for the Biden administration, Solicitor General Elizabeth Prelogar will make the case that there’s no abortion carveout to EMTALA, which applies to all hospitals that accept Medicare, and that the best and sometimes only treatment for certain pregnancy complications is a timely abortion. The federal government will also argue that EMTALA’s protections preempt state law and prevent patient dumping by unscrupulous hospitals.

The federal government, backed by major medical groups that submitted amicus briefs, points to data showing obstetric emergencies are common, with millions of women seeking treatment in emergency rooms every year. Without the full protection of EMTALA, they argue, doctors will confront a minefield with each case, leading to delays in time-sensitive care.

“When is it certain she will die but for medical intervention? How many blood units does she have to lose? One? Two? Five? How fast does she have to be bleeding? Soaking through two pads an hour? Three? How low does her blood pressure need to be? 90 over 60? 80 over 50,” the American College Of Obstetricians and Gynecologists, American College Of Emergency Physicians and American Medical Association wrote to the Supreme Court.
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Federal attorneys are also likely to cite U.S. District Judge B. Lynn Winmill’s ruling on the case last year, in which the Clinton appointee warned that the state was subjecting women in medical crisis to periods of “serious physical and emotional trauma” as they wait to get “nearer and nearer to death … rather than providing the stabilizing treatment that EMTALA calls for.”
Who are the justices to watch?

Some legal experts expect the Supreme Court’s conservative majority to side with Idaho for several reasons, including the justices’ decision to leapfrog the 9th U.S. Circuit Court of Appeals and their move to freeze a lower court decision that blocked Idaho’s law.

But clues are limited about the justices’ views on the central legal issue to be debated Wednesday. When the Supreme Court agreed to take the case in January and put Winmill’s order on hold, no justice wrote a dissent.

To reinstate that injunction against Idaho’s abortion ban, the Biden administration will in all likelihood need the votes of the court’s three Democratic appointees and at least two of its Republican-appointed members. The most likely prospects appear to be Chief Justice John Roberts, who unsuccessfully urged a more restrained ruling from the court two years ago when it overturned Roe, along with Justices Brett Kavanaugh and Amy Coney Barrett, who have sometimes sought opportunities to display moderation since they joined the five-justice majority in the 2022 case, Dobbs v. Jackson Women’s Health Organization.

In Dobbs, Kavanaugh filed a concurring opinion that sought to underscore limits on the court’s seismic ruling. He insisted, for example, that women would retain the right to travel out of state even if their home state chose to ban abortion. And when the high court heard arguments last month on the abortion pill, Barrett repeatedly questioned whether anti-abortion doctors seeking to roll back access to the drug had the legal standing to press their suit.
How could a ruling impact states beyond Idaho?

While a ruling in the case will only apply to Idaho hospitals, it could set a precedent that ripples across more than 20 other states with near-total bans — particularly the five other states that only allow abortions to save the mother’s life and have no health exception. Arizona could join that cohort if lawmakers don’t act soon to stop an 1864 law from taking effect.

Molly Duane, a senior staff attorney with the Center for Reproductive Rights, told reporters on a recent call that the federal government’s ability to go after hospitals in other states that turn away pregnant patients in violation of EMTALA could be jeopardized by a Supreme Court ruling for Idaho.

“If the federal government can’t do that, then who is overseeing these hospitals and making sure that patients get the life saving and health saving care that they need to protect themselves, their families, their pregnancies, their future pregnancies?” she asked. “Even in states that currently have access to abortion, removing the requirements of EMTALA will mean that hospital physicians there aren’t required to provide lifesaving care when it comes to pregnancy and abortion.”

Additionally, Idaho physicians warn, a Supreme Court ruling siding with the state will lead to a surge in Idaho patients being transferred across state lines for emergency care — stretching the resources of both the sending and receiving hospitals.

Dr. Jim Souza, the chief physician executive of St. Luke’s Provider Health System in Idaho, told reporters that last year, when the state was barred by lower courts from enforcing its ban in emergency situations, only one pregnant patient who came into the ER had to be medically evacuated to another state. This year, with that ruling on hold, they’re on track to have 20 patients rushed out of state.

“Putting somebody in a whirlybird and flying them to another state creates an obvious delay in care that puts the patient’s health and life at risk,” he said, adding that “health care spending in the United States of America is out of control and adding in air transports to other states to do what is the standard of care for a medical condition is also incredibly wasteful.”
How could the case shape health care beyond abortion?

Idaho doctors say the state’s ban has triggered a mass exodus of physicians — particularly OB-GYNs and family medicine specialists who deal with obstetric emergencies.

Roughly 22 percent of the state’s OB-GYNs have left, according to the medical advocacy group Idaho Coalition for Safe Health Care, and many have said that the threat of criminal charges if they provide an abortion the state deems medically unnecessary drove them away. New doctors are not coming to replace them, and the staffing shortage has caused three hospitals in the state to close their labor and delivery units over the past two years.

“Positions that we used to fill in weeks stay open for months or don’t get filled at all,” Souza said, stressing that the doctors leaving provided a wide range of services, including prenatal and basic gynecological care. “This is not just an issue for Idaho women of childbearing age, this is an issue for Idaho women,” he said.

Health and legal experts also warn that a ruling for Idaho could encourage states and individual hospitals around the country to test the bounds of EMTALA for care unrelated to abortion.

“If Idaho was allowed to do what it wants to do, then essentially that is green lighting states to go after EMTALA for any disfavored population, or treatment or condition,” warned Sara Rosenbaum, the founding chair of the Department of Health Policy at George Washington University, on a call with reporters last week. “Whether it is barring all but terminal emergency care for people with HIV-AIDS, whether it is barring all but terminal emergency care for people who’ve been in auto accidents on the grounds that somehow having access to an emergency department encourages unsafe driving, the list goes on and on and on.”