WASHINGTON — Nearly two years after quashing the constitutional right to abortion, the Supreme Court on Wednesday will consider the extent to which state bans can extend to women in medical emergencies.
The justices are hearing a case from Idaho, where a strict abortion ban took effect shortly after the 2022 Supreme Court decision overturning Roe v. Wade. The case marks the first time the Supreme Court has since considered a state ban, and comes as the justices consider another case — still pending — that seeks to restrict access to abortion drugs.
The Biden administration says hospitals should be able to terminate pregnancies in rare emergencies where a patient’s life or health is at serious risk, even in states that ban abortions. Idaho says the law has an exception for life-saving abortions, and claims the Biden administration wants to define health emergencies more broadly to turn hospitals into “abortion enclaves.”
Idaho is one of fourteen states that now ban abortion at all stages of pregnancy, with limited exceptions. Most Republican-controlled states have begun imposing new bans or restrictions since Roe was overturned, and 22 states have filed lawsuits in support of Idaho. The Supreme Court allowed Idaho’s abortion ban to take effect, even during emergencies, as the case played out.
Idaho’s ban has already had an impact on emergency rooms in the state, said Dr. Jim Souza, chief medical officer of Boise-based St. Luke’s Health System. Since the emergency law came into effect in January, six pregnant emergency room patients have had to be flown out of the country for treatment. Only one required a similar emergency flight in all of 2023, he said.
Abortion is considered a routine treatment for some emergency situations during pregnancy, such as when a woman’s waters break before a fetus is viable. Idaho doctors see a patient at least weekly with this problem, which puts women at risk for infections, sepsis and bleeding. But to stay within the bounds of Idaho’s abortion law, doctors now have to wait to make sure these patients are close to death before offering abortion treatment, Souza said. “There’s a lot of doubt and hand-wringing. Is she sick enough? Is she bleeding enough?” he said.
Idaho attorneys argue that the exceptions to the abortion ban allow for life-saving abortions, as well as treatment for ectopic pregnancies and unintended emergency terminations. The state says the Biden administration overstated health care problems to create a loophole, despite the 2022 Supreme Court ruling that put abortion in the hands of the states.
“It’s just the government crying wolf in hopes of convincing the judges to take a position that goes against what the law says,” said John Bursch, an attorney with the group Alliance Defending Freedom and co-counsel of Idaho.
The Justice Department originally filed the case against Idaho, arguing that the state’s abortion law violates the Emergency Medical Treatment and Active Labor Act of 1986, known as EMTALA. It requires hospitals that accept Medicare to provide emergency care to every patient, regardless of his or her ability to pay. Almost all hospitals accept Medicare.
Two weeks after Roe was overturned, the Democratic Biden administration released guidelines saying the law requires abortions in emergency situations involving serious life or health threats.
The charges against Idaho were filed shortly thereafter. A district court judge initially sided with the government and ruled that abortions were allowed in medical emergencies, but after an argument at the U.S. 9th Circuit Court of Appeals, the Supreme Court sided with Idaho and allowed the law to be reinstated in January came into full force.
Idaho says the law is intended to ensure patients are stabilized by hospitals rather than turned away, and does not dictate an exact standard of care.
The Biden administration’s reading of the law would open a “mental health loophole” for abortion and allow doctors to make subjective decisions about what poses a serious health threat, the state argues. “EMTALA does not require emergency rooms to become abortion enclaves, which violates state law.”
The law also says hospitals are responsible for stabilizing “the health of the woman or her unborn child,” language indicating there was no expectation that abortions would be necessary, Idaho argued. “Both EMTALA and the Idaho Defense of Life Act are life-affirming laws. There is no conflict between them,” Bursch said.
The Justice Department says the language covers labor and delivery and does not prevent hospitals from stabilizing a woman with necessary treatment, especially when serious risks to her health also endanger a fetus. The bill’s reading would only cover abortions necessary to stabilize a patient, relatively rare situations that can have “life-altering consequences,” federal lawyers wrote.
If the Supreme Court sides with Idaho, it could push more doctors to leave states with abortion bans and expand “maternity care deserts,” says Dr. Caitlin Gustafson, a doctor from Idaho. Nearly a quarter of obstetricians and more than half of maternal-fetal medicine doctors have left Idaho since shortly after Roe was overturned, according to a survey released in February.
It could also weaken the emergency health care protections that EMTALA provides across the country, said Molly Duane, a senior staff attorney at the Center for Reproductive Rights. “Who will oversee these hospitals and ensure that patients receive the life-saving and health-saving care they need to protect themselves, their families, the pregnancies and their future pregnancies?” Duane said.
The Biden administration also faces other lawsuits over its guidelines on abortions and emergency care. The 5th Circuit Court of Appeals ruled against the government in January, ruling that EMTALA does not require Texas hospitals to perform abortions in emergency rooms. The Justice Department has appealed this decision, but has asked the Supreme Court to wait before ruling in the Idaho case.
The Supreme Court is expected to rule by the end of June.