Medical emergencies collide with abortion bans at Supreme Court

WASHINGTON (CN) — The Biden administration’s fight to safeguard abortion access in the wake of Dobbs v. Jackson Women’s Health Organization will hit another roadblock at the Supreme Court next week.

The justices, who last month heard arguments over access to a popular abortion drug, are now preparing to decide whether or not President Joe Biden’s federal mandate for emergency abortion access can withstand state bans.  

Under the Emergency Medical Treatment and Labor Act, enacted by Congress in 1986, any patient who walks into a federally funded hospital is guaranteed emergency care. The Biden administration clarified in the months after Dobbs that hospitals in states with abortion bans must continue to provide the procedure in medical emergencies.

“EMTALA’s promise is limited but profound: No one who comes to an emergency room in need of emergency medical care should be denied the treatment required to stabilize her condition,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief to the Supreme Court.

In some cases, the government said, the only treatment that can save a woman’s life or prevent grave harm to her health is an abortion. This position, and state abortion bans, have been on a collision path since Dobbs.

Several states including Idaho and Texas claim their abortion bans should take precedence over federal emergency care protections.

“The whole point of Dobbs was to restore to the states their authority to regulate abortion,” Joshua Turner, Idaho’s acting solicitor general, wrote in the state’s brief. “Yet the administration seeks to thwart Idaho’s exercise of self-government on this important topic.”

Idaho enacted a trigger law in anticipation of the court overruling Roe v. Wade. The Defense of Life Act bans nearly all abortions, with only minor exceptions to prevent the death of the pregnant person.

The Biden administration sued Idaho to force the state to provide emergency abortion care under federal law. A lower court granted an injunction against Idaho’s law, allowing hospitals to use abortions in emergency care.

After a three-judge Ninth Circuit panel allowed Idaho to enforce its ban once again, a panel of 11 judges heard the case en banc and kept the state's ban on pause.

Idaho asked the Supreme Court to jump in and stop hospitals from offering emergency abortions. When the court decided to review the case, it allowed Idaho to refuse abortion care in the meantime.

The Emergency Medical Treatment and Labor Act, Idaho argues, only forces hospitals to provide medical care that would be available elsewhere in the state.  

“In Idaho, the abortions for which the administration vies are not ‘available’ to any patient,” Turner wrote. “EMTALA does not require hospital emergency rooms to become abortion enclaves in violation of state law.”

To defend its ban, Idaho relies on the idea that fetuses should have the same protections as pregnant people.

“In addition to requiring equal treatment of patients generally, EMTALA explicitly promises in four places protection for an ‘unborn child,” Turner wrote. “That admonition belies any requirement that hospitals must end the lives of unborn children in violation of state law.”

The Biden administration points to specific Idaho hospital cases to explain the necessity of abortion care.

One woman went to an emergency department with severe pre-eclampsia at 15 weeks gestation. Without stabilizing care, she was at risk for long-term complications like seizures and stroke. At 15 weeks, the fetus would not survive, and continuing the pregnancy threatened the patient’s fertility, so the hospital terminated the pregnancy.

Another patient experienced a preterm amniotic sac rupture at 19 weeks. Continuing a pregnancy with the condition would have put her at risk of sepsis, limb amputations and uncontrollable bleeding requiring a hysterectomy.

Idaho’s ban would allow these patients to receive abortion care only if their lives were at risk — it makes no exceptions for serious injuries.

“If a doctor acting on pain of felony prosecution must wait to provide treatment until she can deem it necessary to prevent death, the patient ‘may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication,’” Prelogar wrote.

Doctors who violate Idaho’s abortion ban could lose their medical license and face jail time.

Dr. Jim Souza, chief physician executive of St. Luke’s Health System in Idaho, said OBGYNs are fleeing the state because they aren't willing to risk spending time behind bars for practicing medicine.

Souza said prior to Idaho’s ban, emergency doctors could act as quickly as possible to preserve a pregnant person’s health and future reproductive capacity. Now that the ban is in place, there are other factors to consider.

“There's a lot of second-guessing and handwringing,” Souza said in an April 18 press call.

“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.”

Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, said Congress wanted to avoid patients having to transfer to different hospitals to receive emergency medical care.

“The entire purpose of EMTALA was to establish a baseline so that when any individual experiencing an emergency went to the hospital, they knew they could get treated there regardless of where they live,” Kolbi-Molinas said.

“The purpose of EMTALA was not to create a situation in which one state had to shift its emergency patients to another state to get the basic treatment that they need … and yet that is exactly what Idaho now 40 years later is trying to resurrect throughout the country.”

The Supreme Court will hear arguments on April 24.

Follow @KelseyReichmann

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