‘Abortion is not health care,’ interest groups say. Supreme Court to rule on Idaho ER case

Three weeks before the U.S. Supreme Court is set to hear oral arguments in a case that will decide the fate of emergency medical exceptions to Idaho’s abortion ban, dozens of supporters of the law have weighed in — including numerous conservative think tanks, religious organizations and anti-abortion medical associations.

The court filings, called amicus or “friend of the court” briefs, are part of the case Idaho appealed to the Supreme Court late last year. In August 2022, shortly after the Supreme Court’s decision to overturn Roe v. Wade, the U.S. Department of Justice sued Idaho over its near-total abortion ban. The federal government argued that the ban’s limited exceptions for abortion — when a pregnant person is at risk of death or in cases of rape or incest that have been reported to police — violates the federal Emergency Treatment and Active Labor Act (EMTALA).

Amicus briefs are filed by parties who have a significant interest in a case but are not themselves involved. The briefs can influence the court’s decision by showing the potential impact of case. They offer additional input, case law and context that may not be part of the legal parties’ arguments.

The briefs challenge numerous aspects of the case, from the need for emergency abortion to the authority of the Department of Health and Human Services to instruct health care providers to prioritize EMTALA over state restrictions, as it did in 2022. Health and Human Services Director Xavier Becerra said in a letter to health care providers that physicians must provide an abortion if they believe it’s the necessary stabilizing treatment for a medical emergency.

Since the Justice Department sued the state, various courts have changed course on whether to allow the emergency room abortion ban stand. In January, the Supreme Court quietly issued an order upholding the ban. Oral arguments in the case will take place in Washington, D.C., on April 24.

Forty-five amicus briefs — 18 of them from proponents of Idaho’s abortion ban — have been filed in the case as of Thursday afternoon, some representing numerous stakeholders. The briefs are available to read online at the Supreme Court’s docket page.

Anti-abortion groups say feds overstepped

Several briefs filed in support of Idaho’s abortion ban question whether the federal government overstepped its role by directing medical professionals to prioritize EMTALA, which prevents hospitals from turning away patients who can’t afford care and requires them to stabilize anyone with an emergency medical condition.

Lawyers for several conservative groups — including the Idaho Family Policy Center, the conservative think tank Manhattan Institute and the National Right to Life Committee — told the court that the Department of Justice is twisting EMTALA’s original purpose of preventing hospitals from refusing patients care.

In a joint brief with Advancing American Freedom and more than a dozen other organizations, an attorney for the Idaho Family Policy Center said the purpose of the 1980s act was not to create “a Trojan horse for mandatory abortion even contrary to state law.”

In its brief, the Center for Constitutional Jurisprudence, which is the lobbying arm of the conservative Claremont Institute, asserted that “this case is not about abortion.”

The center’s brief said Health and Human Services tried to wield power that belongs to the states. Numerous family policy centers from states across the U.S. in a joint brief accused Health and Human Services of trying to “federalize” emergency health care.

‘Abortion is not health care’

Several of the amicus briefs addressed the case from a different angle: They said that even in emergencies, abortions are not necessary to stabilize patients.

“Abortion is not health care,” said one brief submitted by lawyers for anti-abortion groups The Justice Foundation and First Rights Global. The brief said it was on behalf of more than 2,700 women who were “hurt by abortions.”

A cadre of Catholic organizations, the American Association of Pro-Life Obstetricians and Gynecologists and the anti-abortion nonprofit Charlotte Lozier Institute all claimed abortion is not a stabilizing procedure.

The Department of Justice’s argument disputes that assertion. In a separate brief, the American Medical Association and organizations representing emergency physicians and OB-GYNs said abortion can be the appropriate treatment in numerous emergency situations.

“Abortion may be the necessary stabilizing care when continuing a pregnancy risks severe health consequences to the patient, like loss of uterus (and future fertility), seizures, stroke, vital organ damage and failure, and death,” the medical groups’ brief said.

The groups said Idaho and its supporters are trying to gloss over a conflict between Idaho law and EMTALA by “creating a new, non-medical definition of ‘abortion’” that relies on the intent of a medical procedure. If the intent is to save the pregnant patient’s life, Idaho considers a terminated pregnancy a “separation,” but if the intent is to prevent organ loss, the same procedure is considered an abortion, the groups argued.

The Idaho Coalition for Safe Healthcare, a nonprofit representing hundreds of Idaho physicians, also asserted the need for abortion under EMTALA.

“For some pregnant patients, abortion care is the necessary stabilizing care,” the coalition’s brief said. “Yet (Idaho law) bars Idaho health care providers from providing this care until the patient is on the brink of death.”

The Catholic organizations pointed to the church’s long history of providing health care and said providers are able to balance Catholic anti-abortion values with medical treatment. They said Catholic health care providers have stabilized patients for decades without “resorting to the direct and intentional termination of the life of the unborn child.”

“Abortion is never necessary to protect the life of a pregnant mother,” the groups’ brief said.

The church also argued that the Health and Human Services directive encroached on Catholic health care providers’ right to refuse to perform procedures they object to on moral or religious grounds. That argument was echoed by Lutheran organizations, the Christian Medical and Dental Associations and the Institute for Faith and Family.

“The injury here is particularly insidious, forcing conscientious objectors to personally participate in a morally objectionable procedure — abortion,” the Institute for Faith and Family brief said.

A brief submitted by attorneys general for nearly two dozen U.S. states, most of them Democratic, argued that EMTALA has never allowed for physicians to refuse “stabilizing treatment” based on religious, moral or ethical beliefs.