Confusion persists for Idaho doctors, now in ‘legal limbo’ after Supreme Court decision

By Nicole Blanchard and Ian Stevenson Idaho Statesman

The U.S. Supreme Court has temporarily struck down Idaho’s abortion ban in medical emergencies, kicking the decision down once again to a lower court and allowing hospitals to sometimes perform the procedure when a pregnant patient’s health is at risk.

The decision released Thursday doesn’t side with the U.S. Justice Department in its lawsuit against Idaho over its abortion ban. Rather, it reverses a Supreme Court order issued in January that allowed the state’s abortion ban to take effect in medical emergencies.

The Supreme Court in January had grabbed the case, at the urging of Idaho Attorney General Raúl Labrador, before lower courts had finished litigating it. Three of the conservative justices called the court’s decision to take up the case early a “miscalculation” in an opinion written by Justice Amy Coney Barrett, citing the shifting legal arguments and changes to the abortion law as the case has moved through court.

The 6-3 decision brings the case back to the 9th Circuit Court of Appeals for more litigation after two years. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented. The opinion matches a document that was briefly posted, then removed from the court’s website Wednesday morning.

The federal government sued the state over its abortion ban after the law went into effect following the Supreme Court’s reversal of Roe v. Wade in June 2022. While Idaho’s abortion law allows an exception to prevent a pregnant patient’s death, it bars the procedure as a means of preserving patients’ health. Doctors and medical associations told the Idaho Statesman and the court that abortion is a recommended stabilizing procedure for several emergency conditions.

The case centers on the Emergency Medical Treatment and Labor Act, or EMTALA, a decades-old federal law that prevents hospitals from turning away patients experiencing medical emergencies. All hospitals that accept Medicare funding must comply with EMTALA.

“Idaho represents that its exception is broader than the United States fears, and the United States represents that EMTALA’s requirement is narrower than Idaho fears,” Barrett wrote.

In a separate opinion, Justice Ketanji Brown Jackson concurred in part with the overall ruling but criticized the decision to dismiss the case to a lower court rather than resolving it. The case has already bounced from District Court to appeals courts, with several reversals of pauses on the emergency abortion ban.

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson wrote. “While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.”

Clash between federal, state law remains unaddressed

The court’s decision will have broad impacts outside of Idaho. At least six other states have similar laws, and others are in the process of implementing stricter abortion regulations.

Several doctors have told the Statesman Idaho’s abortion ban is vague enough to leave them questioning whether they could face prison time and the loss of their medical license if they performed an abortion when a patient’s health is at risk.

But Labrador said nothing in the law conflicts with hypothetical cases physicians presented in court documents. That assertion was part of the state’s argument to the Supreme Court justices in April, prompting Barrett to ask, “If there’s no instance where EMTALA and Idaho law clash, then why are you here?”

In the opinion released Thursday, Justices Elena Kagan and Sonia Sotomayor acknowledged what Idaho medical experts said was a substantial increase in emergency transfers to out-of-state hospitals in recent months and said the “on-the-ground impact” of the court’s January order was immediate.

Some justices during oral arguments implied that the decision could also inform other legal cases in which state and federal law clash. The ruling seemingly dodged that issue, leaving it for the lower courts to decide.

In Barrett’s opinion, which Justice Brett Kavanaugh and Chief Justice John Roberts joined, she said the case had become murky and would be better handled by lower courts. The opinion said shifts in both sides’ arguments “rendered the scope of the dispute unclear, at best.”

Barrett’s opinion said it would be “imprudent” to answer the questions of whether federal law can allow hospitals to perform treatments banned by a state, and whether EMTALA can pre-empt state law, because it applies to private hospitals. She noted that the debate over private entities emerged for the first time when justices questioned the federal government during oral arguments.

Barrett, Kavanaugh and Roberts said changes to Idaho abortion law since 2022 also complicates the case. The law at the heart of the Supreme Court discussion was altered by the Idaho Legislature to allow abortions in cases of ectopic or molar pregnancies and to make it easier for doctors to defend themselves against criminal charges if they performed an abortion to protect a patient.

Meanwhile, the court’s three liberal justices in an opinion authored by Elena Kagan argued the state’s law plainly conflicts with EMTALA in the rare instances when abortions are needed to protect a woman’s health.

Jackson, on her own, went further, saying the court’s January decision to allow the full Idaho law to take effect led to a “monthslong catastrophy” that “directly violated federal law.”

She wrote that the issues of the case are clear, and that failing to issue a final decision will leave women with precarious pregnancies in a frightening quandary. She said the state’s contention that its law does not conflict with federal law was a “convenient rhetorical maneuver,” and charged her conservative colleagues with implausibly believing that the arguments have changed the facts on the ground.

“It is strange, to say the least, that this court would shirk its duty to resolve a pressing legal issue on the basis of representations that defy medical realities,” she wrote.

Alito, one of the most conservative justice on the court, agreed that the court should have ruled on the merits – but for completely different reasons. In the dissent he penned, he said the court took up the case and issued its January order based on “Idaho’s ‘strong’ likelihood of success.” He slammed the decision to hand the case back to the 9th Circuit and walk back the order.

“This about-face is baffling,” Alito wrote. “Apparently the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”

Labrador: Doctors confused by ‘pro-abortion lawyers’

The Idaho Coalition for Safe Healthcare, a group of medical providers who consult on health-related legislation, said the ruling provides physicians some relief from months of uncertainty. The group’s co-presidents, Drs. Loren Colson and Caitlin Gustafson, said they’re relieved to again be able to provide emergency care, but emphasized that it shouldn’t be in question to begin with.

The physicians said the group will continue to push for policy changes that specifically carve out emergency medical exceptions for abortion in Idaho law.

“Health care providers need, and patients deserve, a definitive decision from the courts that allows emergency physicians to do their jobs – providing care to those who end up in their emergency rooms,” they said.

The Idaho Medical Association in a statement also emphasized the need to change state laws. Association CEO Susie Keller and Dr. Megan Kasper, a Canyon County OBGYN, said in the statement that restrictive abortion laws continue to create a doctor shortage and “maternity care deserts.”

Labrador told reporters Thursday that while he was disappointed the court didn’t issue a final decision, he appreciated some of the justices’ recognition that Idaho’s law is “broad.” He said physicians have been scared by “left-leaning, pro-abortion lawyers” who are confusing them.

“If a doctor in good faith believes that the woman’s life is in jeopardy … they can terminate the pregnancy,” he said, even if the threat is not imminent. “The state of Idaho continues to be the best place to raise a family.”

The largest hospital system in Idaho, St. Luke’s Health System, said in April that six patients had to be airlifted out of state for pregnancy-related emergencies during the three months the full abortion ban was in effect. Labrador cast doubt on those reports and said that “if they did happen, they happened unnecessarily,” and noted that since April, he hasn’t heard of any new airlifts.

St. Luke’s officials confirmed during a news conference Thursday that no additional patients have been airlifted to other states since April. Keller, of the Idaho Medical Association, and Dr. Duncan Harmon, a St. Luke’s maternal-fetal medicine specialist, said confusion and concerns persist – especially since doctors face criminal prosecution for performing abortions outside of the state’s few exceptions.

“There is confusion both from patients and providers about which scenarios – or in clinical scenarios, how sick someone needs to be – for us to be legally clear to proceed with appropriate medical care,” Harmon said.

Keller said accounts like Harmon’s are the most accurate portrayal of how Idaho’s abortion ban impacts patients.

“We’re sitting in our offices, legislators are sitting in their offices, but Dr. Harmon and his colleagues are the ones who are taking care of patients,” Keller said. “So all we can do is keep elevating our stories.”

“This is the reality,” Idaho Hospital Association spokesperson Greg Morrison added during the news conference. “Whether elected officials choose to believe the reality, we can’t force them to do that.”

Democrats slam GOP policies that put ‘lives at risk’

Democrats on Thursday celebrated the ruling as a temporary win for doctors and pregnant patients facing medical complications, and called for more Democratic representation as they slammed Republicans for enacting policies that jeopardize women’s health.

“This ruling provides a temporary sliver of relief to patients facing dire medical emergencies and the doctors and nurses who desperately want to treat them without risking a prison sentence,” Idaho Democratic Party Chair Lauren Necochea said in a statement. “It does not change that the Idaho Republican supermajority has completely yielded to the anti-abortion hardliners.”

In a news conference at the Idaho Capitol on Thursday afternoon, Senate Minority Leader Melissa Wintrow and House Minority Leader Ilana Rubel, both Boise Democrats, criticized the Supreme Court for punting the case and called out Idaho conservatives for creating and defending the strict abortion ban.

“We have to ask: Why did our Republican leaders work so hard to make this nightmare a reality?” Wintrow said. “The deadly peril faced by pregnant women in Idaho in the wake of this ruling was deliberately orchestrated by Idaho’s Republican politicians who are willing to greatly endanger pregnant women for their own political advantage.”

The legislators urged voters to side with Democrats in November to improve the chances of altering Idaho’s abortion laws.

Rubel compared the GOP-backed ban to tying Idaho women to railroad tracks.

“The Supreme Court just temporarily slowed the oncoming train, but the women of Idaho remain tied to the tracks,” Rubel said. “And our GOP politicians will stop at nothing to keep them there and to speed up the train that’s heading toward them.”

One former conservative lawmaker told Idaho Reports she was pleased with the Supreme Court decision. Former Sen. Patti Anne Lodge, R-Huston, helped draft some of Idaho’s abortion restrictions before Roe v. Wade was overturned in 2022. Lodge, who is Catholic, told Idaho Reports she experienced “heartburn” over some of the aspects of those laws now. She experienced difficult pregnancies, she said, and would like to see more medical exceptions to the state ban.

President Joe Biden in a statement said “part of Republican elected officials’ extreme and dangerous agenda (is) to ban abortion nationwide and put women’s health and lives at risk.”

“No woman should be denied care, made to wait until she’s near death or forced to flee her home state just to receive the health care she needs,” Biden said.

Attorney General Merrick Garland in a statement said the Department of Justice is ready to continue litigation and “will continue to use every available tool to ensure that women in every state have access” to emergency care.

Planned Parenthood, which has challenged some of Idaho’s abortion laws in its own legal cases, also criticized the decision for simply reinstating what it called “the bare minimum” in care for pregnant patients.

“For now, we can take a collective sigh of relief for pregnant people in Idaho,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky. “But the truth is that access to lifesaving abortion care in an emergency should never have been in doubt. The fact that this right remains in legal limbo is outrageous and shameful.”

Conservative groups expressed disappointment in the ruling. In a statement Wednesday after the opinion first leaked, the Idaho Family Policy Center, which has crafted some of Idaho’s abortion restriction laws, said it strongly disagreed with the court.

Blaine Conzatti, the group’s director, said the organization warned lawmakers years ago that its exception to prevent the death of the mother “could be construed as conflicting with EMTALA and would almost certainly be challenged in federal court.”

The Alliance Defending Freedom, a right-wing Christian legal advocacy group that helped Labrador’s office in the case, said it’s confident Idaho law will prevail when litigation continues.