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Pregnant women in Idaho should be able to get abortions in medical emergencies, at least for now.
The Supreme Court on Thursday formally rejected an appeal of Idaho’s strict abortion ban, blocking the state’s law that criminalizes most abortions. At least while the case is before the court, the state cannot deny emergency abortions to pregnant women whose health is at risk.
The decision was mistakenly posted on the U.S. Supreme Court’s website on Wednesday and was first reported by Bloomberg News.
“Today’s ruling is not a victory for Idaho’s pregnant patients,” Judge Ketanji Brown Jackson wrote in a separate opinion. “It is a delay.”
Idaho’s strict ban doesn’t allow doctors to perform abortions when the patient’s health is endangered by the pregnancy itself, in most cases, and the Biden administration argues that the law violates the federal Emergency Medical Treatment and Labor Act, also known as EMTALA.
EMTALA requires all U.S. hospitals that receive Medicare funds (which is virtually all hospitals) to screen everyone who comes to their emergency room to determine whether they have an emergency medical condition, regardless of their ability to pay for the services.
A 1986 law requires hospitals to stabilize patients with emergency medical conditions or transfer them to another facility that has the capacity to do so, whenever possible. Hospitals must also treat these patients “until the emergency medical condition is resolved or stabilized.”
In 1989, after reports that some hospitals were refusing to care for uninsured women giving birth, pregnant women were specifically included in the legislation. Congress expanded EMTALA to explicitly include those who are pregnant and in labor.
The Biden administration announced an expansion of EMTALA mandates in 2021, saying that doctors’ obligations to provide stabilizing treatment “supervise any directly conflicting State law or mandate that may prohibit or prevent such treatment,” but did not specify whether they must provide abortions.
In July 2022, Biden Administration guidance clarified that EMTALA includes the requirement to provide stabilizing abortion care when medically necessary to treat an emergency medical condition.
The Supreme Court’s decision means that even in states that have abortion bans or restrictions that don’t make exceptions to protect the mother’s health, hospitals must perform abortions when deemed medically necessary in an emergency — at least while the case is before the court.
But Molly Megan, chief legal officer for the American College of Obstetricians and Gynecologists (ACOG), a professional organization that represents the vast majority of U.S. doctors, said the move only postpones the problem.
“It doesn’t solve the problem at all. In fact pregnant patients are still being denied treatment and doctors are trying to provide care without clear standards and facing severe criminal penalties for asking the wrong question,” she said.
Idaho’s abortion law had an immediate impact on hospitals in the state. On January 5, the Supreme Court lifted the injunction, meaning Idaho lost its EMTALA protections for pregnancy complications. St. Luke’s Hospital, the state’s largest emergency care provider, said in April that it had to airlift six pregnant women out of state from its emergency department to protect their health.
The previous year, when the injunction was in effect, hospitals only had to do this once.
Megan said the law has not only negatively affected patient care, but doctors have told the group they are leaving the state because they feel they are no longer able to practice medicine in a way that is consistent with their ethical obligations, training and judgment.
“This is an intolerable situation,” Megan said.
Dr. Kara Cadwalader, who practices in Idaho and is a member of the Idaho Coalition for Safe Care, said that just last week, her hospital had to send pregnant women out of state to be treated when they normally could have been treated there. She said Wednesday that she was “very excited” about the ruling, even if it’s just a “small step.”
“Beyond political reasons, it’s vital that pregnant Idaho patients have access to appropriate emergency care,” Cadwalader said.
Dr. Julie Lyons, a family medicine physician at St. Luke’s Hospital, told CNN earlier this year that Idaho’s abortion laws are so strict that she makes sure to tell her patients what to do if an emergency occurs, even during their first preconception visit.
“We’re having these discussions now more than ever before, like if you need to go out of state, you need to check with your insurance company, you need to make sure you have LifeFlight insurance,” Lyons said in February.
“A lot of my patients are afraid to get pregnant in Idaho. It’s a real tragedy,” she added.
Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, a private health care company that provides abortion care, said any decision on EMTALA would not just affect Idaho.
Forty-one states have anti-abortion laws with limited exceptions, and 14 have total bans. Hagstrom Miller said abortion can be a necessary part of medical care, but the Supreme Court’s move to overturn Roe v. Wade has left doctors confused about what they’re allowed to do.
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“Abortion saves lives. Abortion is absolutely necessary and often occurs in an emergency room to protect the health of pregnant women,” Hagstrom Miller said. “Since Roe here, since Dobbs , I think abortion providers in many states and many parts of the country really understand that their hands are tied.”
“This isn’t just an Idaho issue. States across the country are looking at this to see what they can do to provide basic health care even if they have restrictions on abortion.”
“Every other state that bans abortion will continue to be in chaos,” said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law.
“Even when states have ‘health’ exceptions in their laws, they are typically narrower than those required by EMTALA,” Sepper said in an email.
Alexa Kolbe Molinas, vice president of the ACLU’s Reproductive Freedom Project, said she thinks Idaho is a “very cruel case study” of what happens when laws strip pregnant people of their right to emergency abortion care. She said Wednesday she was disappointed with the decision because the court had an opportunity to uphold a law that would provide universal access to care but didn’t.
“The right to emergency medical care is probably one of the most fundamental rights,” Kolbi Molinas said. “We were fighting for what was left of this case, and yet the majority of the Supreme Court refused to acknowledge the humanity of pregnant women and that they have a fundamental right to emergency medical care.”
CNN’s Meg Tyrrell, Karma Hassan, Jamie Gumbrecht and John Bonifield contributed to this report.
