Supreme Court to decide if U.S. law requires some emergency room abortions

The Supreme Court said Friday it will review a case challenging Idaho’s strict abortion ban, which the Biden administration says conflicts with a federal law requiring emergency room doctors to perform the procedure in some circumstances.

Idaho’s attorney general asked the justices to intervene after a lower court judge blocked a section of Idaho’s abortion statute targeting doctors. The judge said the provision violates a federal law that requires hospitals receiving Medicare funding to guarantee emergency care. In its brief order Friday, the justices allowed the Idaho law to take full effect for now and said they would review the matter on an expedited basis in April.

The Biden administration turned to the Medicare law as a narrow way to challenge state-level abortion bans in federal court after the Supreme Court’s conservative majority overturned the fundamental right to an abortion established decades earlier in Roe v. Wade. The effort was seen as one of the few paths the administration could pursue to preserve access to abortion, which remains a galvanizing and divisive issue across the country in the lead up to the 2024 presidential election.

The issue of access to abortion in health emergencies is not the only reproductive-rights case to reach the high court this term. The justices also will decide whether to limit access to the widely used abortion medication, mifepristone, first approved by the Food and Drug Administration more than 20 years ago.

Idaho was one of several states to pass a “trigger” law before the 2022 decision in Dobbs v. Jackson Women’s Health, with the expectation that it would automatically take effect if the court overturned Roe. The Idaho law, passed in 2020, bans most abortions and imposes penalties of up to five years in prison on doctors who perform the procedure, with an exception when “necessary to prevent the death of a pregnant woman.”

Abortion rights advocates and medical experts say the Idaho law, and similar bans in more than two dozen other states, have put doctors and hospitals at legal risk as they navigate life-or-death decisions for pregnant patients and seek to interpret vague medical exceptions to decide whether it is permissible in some circumstances to terminate a pregnancy.

In a similar case in Texas, the conservative U.S. Court of Appeals for the 5th Circuit this week ruled against the Biden administration, saying Texas hospitals and doctors are not obligated to perform abortions under the federal emergency-care law.

In response to the Supreme Court’s order Friday, President Biden said in a statement that the court’s reversal of Roe had allowed Republican officials in states like Idaho to pass laws that “jeopardize women’s health, force them to travel out of state for care, and make it harder for doctors to provide care, including in an emergency.”

“These bans are also forcing doctors to leave Idaho and other states because of laws that interfere with their ability to care for their patients. This should never happen in America,” Biden said.

The Emergency Medical Treatment and Active Labor Act was passed nearly 40 years ago to ensure that hospitals receiving Medicare funds treat or transfer patients with emergency medical conditions. After the Dobbs decision, the federal government issued new guidance to hospitals saying that the 1986 law requires health-stabilizing treatment for all patients, even if that treatment is an abortion.

The Biden administration sued Idaho last year, arguing that its ban did not provide enough leeway for physicians to perform abortions in emergency situations for pregnant patients experiencing complications. Federal law protects patients not only from imminent death but also from emergencies that seriously threaten their health, Solicitor General Elizabeth B. Prelogar told the justices in a court filing.

Under Idaho’s law, Prelogar wrote, an emergency room physician who concludes that “a pregnant woman needs an abortion to stabilize a condition that would otherwise threaten serious and irreversible harm may not provide the necessary care unless and until the patient’s condition deteriorates to the point where an abortion is needed to save her life.”

In August 2022, U.S. District Judge B. Lynn Winmill sided with the Biden administration and temporarily blocked the contested provision of the Idaho law. The judge left the state’s ban on most abortions in place. But Winmill said that because of the obligation of hospitals under conflicting federal law, a doctor cannot be punished for performing an abortion to protect the health of a pregnant patient.

Winmill, who was nominated by President Bill Clinton, said the decision was not about the “bygone constitutional right to an abortion,” but a “far more modest issue – whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation.”

“It does,” the judge ruled.

A unanimous panel of the U.S. Court of Appeals for the 9th Circuit put Winmill’s order on hold. That panel was reversed in November by a full complement of judges on the appeals court who said the provision would remain blocked while the appeals continued. Idaho then asked the Supreme Court to intervene. Arguments are scheduled in the 9th Circuit for later this month, although they could be put on hold now that the justices are reviewing the matter.

Idaho Attorney General Raúl R. Labrador (R), joined by the Christian legal advocacy group Alliance Defending Freedom, told the justices that the lower court’s decision to block the law essentially turns federal protections for poor patients into a “federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life and turns emergency rooms into a federal enclave where state standards of care do not apply.”

Erin Hawley, senior counsel for ADF, said Idaho’s law allows doctors to care for women experiencing ectopic pregnancies, miscarriages and other life-threatening conditions. In a statement, she said the federal government’s challenge is “twisting the law to endanger the lives of women and their children.”

In Idaho, Sara Thomson, an OB/GYN, said Friday that she and her colleagues have struggled to determine which patients they can treat under the state’s ban.

In discussions about patients with life-threatening pregnancy complications – and whether she and her colleagues can legally provide abortions – Thomson said she has frequently referred back to the Biden administration’s interpretation of the federal emergency care law, which she said provides “a clarity that our abortion law does not.”

The past few months have been especially taxing, she said, as courts have ping-ponged back and forth over whether doctors must provide abortions in life-threatening situations. Each time, she said, doctors and hospital lawyers have to reconsider which pregnancy conditions they are legally able to treat.

Now that the Supreme Court has allowed Idaho’s law to take full effect, Thomson said, she has to recalibrate once again.

“I could take care of a patient in [a life-threatening] scenario tomorrow – and now I have to wait for months to figure out what I can do,” she said. “It just makes me question what I am doing in this state anymore.”