Emergency Abortion Clash at Supreme Court Tests Strictest Bans

Greg Stohr
·5 min read
7

(Bloomberg) -- The US Supreme Court will consider just how far states can go in prohibiting abortion Wednesday as it weighs whether emergency room doctors nationwide can perform the procedure when a pregnant woman’s health is at serious risk.

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Two years after overturning Roe v. Wade and letting states outlaw abortion for the first time in a half century, the justices will use an Idaho case to decide whether the Biden administration can invoke a federal hospital law to blunt the impact in states with the strictest bans.

The showdown is already having a profound impact in Idaho, where abortion has been illegal except when the patient’s life is in danger since the Supreme Court let the law go into full effect in January. Doctors and hospital administrators say a growing number of Idaho women who have no chance of delivering a healthy baby are being forced to wait days to address a serious health risk — or be rushed out of state.

“No one wants to hear that their baby has no chance of survival or minimal chance of survival and that their own health is at risk,” said Sara Thomson, a Boise obstetrician. “But then we have now these added conversations: ‘Well, if we deliver you now, this is technically considered illegal in the state of Idaho. We can’t offer you this treatment yet.’”

The clash is the second of two abortion cases in a Supreme Court term that could have big stakes for both reproductive rights and the November election. During arguments last month, the justices expressed skepticism toward a bid to restrict access to a widely used abortion pill. The court is scheduled to decide both cases by late June.

For abortion opponents, the Idaho case may be a more promising fight. The Supreme Court’s order in January, letting the state abortion law take full effect while the justices hear the case, suggested skepticism toward the administration’s contention that the federal Emergency Medical Treatment and Labor Act overrides state abortion bans. EMTALA, as the 1986 law is known, requires hospitals receiving federal funds to provide stabilizing care to patients who arrive in emergency situations.

Texas Fight

The high court’s ruling will affect other states with sweeping abortion bans, including Texas, which is waging a similar legal fight against the administration. The decision could also hint at the justices’ views on far-reaching constitutional questions, including so-called “fetal personhood” arguments pressed by conservative advocates.

The administration sued just before the Idaho ban took effect in August 2022, and two lower courts had said doctors could continue performing abortions in health emergencies while the legal fight goes forward.

Opponents say the unyielding nature of Idaho’s law is creating dangerous situations. A brief filed by the Idaho Coalition for Safe Healthcare, which represents doctors and other providers, describes three cases since January in which physicians have delayed abortions despite growing health risks. In one case, a woman with an array of health complications including failing kidneys had to be flown to a neighboring state with a medical team, the group said.

Jim Souza, chief physician executive at St. Luke’s System in Idaho, said a common scenario is a woman who arrives with a ruptured membrane – colloquially known as broken water – well before the fetus has a chance of surviving outside the womb.

‘Sepsis, Hemorrhage’

“This condition puts the mother at great risk for infection, sepsis, and hemorrhage from something called placental abruption,” Souza said. “Especially since there is no chance the fetus younger than 22 weeks can survive, the treatment of choice is an abortion.”

An anti-abortion medical group, the American Association of Pro-Life Obstetricians & Gynecologists, says doctors have other options in cases of premature membrane rupture. The group told the Supreme Court that doctors can use “expectant management,” which involves close monitoring of the mother and fetus.

“A significant proportion of women can give birth without suffering any significant negative health impacts, even when the membranes rupture at very early stages of pregnancy,” the group argued in court papers.

In one case, an Idaho woman suffered a ruptured membrane at 18 weeks of pregnancy, was monitored by doctors and successfully gave birth five weeks later, according to John Bursch, senior counsel at Alliance Defending Freedom, the Christian legal group helping Idaho defend its law.

Stabilizing Treatment

US Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer, told the justices in court papers that EMTALA was designed to ensure patients in the emergency room get the stabilizing treatment they need. “For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy,” Prelogar wrote.

But the state says EMTALA was designed to prevent patient dumping, not to supersede a state’s judgment on what care doctors should provide patients — in this case, barring abortions unless the mother’s life is in danger.

“What this comes down to is the administration manipulating EMTALA in a way it’s never been understood before to try to override Idahoans’ choice to preserve life,” Bursch said.

Critics say the Idaho law, which carries criminal penalties of as much as five years in prison, has led to an exodus of doctors from the state. In the first 15 months since the ban took effect, 60 obstetricians left the state and only two moved in, according to the Idaho Coalition for Safe Healthcare. St. Luke’s alone lost two maternal fetal medicine specialists last year because of the abortion law, the system said in a brief filed with the Supreme Court.

“The threat of incarceration for five years for patient care is a heavy burden,” Thomson said. “And being told that no physician has been prosecuted in our state yet or that a case of medical necessity is unlikely to be prosecuted is not adequately reassuring.”

The cases are Moyle v. United States, 23-726, and Idaho v. United States, 23-727.

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