This morning, the Supreme Court is hearing arguments in a case brought by the state of Idaho, which wants the nation’s highest court to rule that its abortion ban preempts federal law when it comes to emergency abortion care.
The Emergency Medical Treatment and Labor Act, known as EMTALA, requires that hospitals receiving Medicare funding provide stabilizing care for all ER patients—including abortion care, even if it conflicts with a state’s own stricter abortion rules.
Enter Idaho. That state’s draconian abortion ban was triggered the minute the Supreme Court overturned Roe v. Wade in 2022. The ban allows for an abortion when “necessary to prevent the death of the pregnant woman,” but does not require emergency room doctors to provide stabilizing care. The Biden administration sued the state, saying the abortion ban violates EMTALA because its exceptions are too narrow to allow doctors to perform abortions if needed to stabilize a patient.
Idaho’s doctors concur.
Dr. Caitlin Gustafson explains in an op-ed for Time magazine:
Idaho’s abortion ban makes it a crime for anyone to perform or assist with performing an abortion in nearly all circumstances. The ban does not even include an exception for when a person’s health is at risk—only for when a doctor determines that an abortion is necessary to prevent the pregnant person’s death. Ask any doctor and they'll tell you that this "exception" leads to more questions than answers.
Gustafson writes that in Idaho, “we’ve lost nearly a quarter of our obstetricians since the state’s abortion ban went into effect—colleagues and friends who got into medicine to help people are being forced out of practicing obstetrics in our state.” Doctors in Idaho have pleaded with the legislature for a health exception, both to save women and to keep OB-GYNs in the state, to no avail.
It’s not just Idaho. Texas has sued the Biden administration, saying it’s using EMTALA as an end-run around state abortion bans to “mandate that every hospital and emergency-room physician perform abortions.” The administration did issue guidance in July 2022 to “remind hospitals of their existing obligation to comply with EMTALA … in light of new state laws prohibiting or restricting access to abortion.”
That guidance hasn’t been enough to protect women in states with life-threatening abortion bans. That includes Florida, where friends Anya Cook and Shanae Smith-Cunningham both faced health emergencies during their pregnancies.
“The doctor said … ‘if I intervene, I could possibly be arrested’ … Getting pregnant now feels like a death sentence,” Cook told The Washington Post. Smith-Cunningham needed an emergency abortion for a nonviable pregnancy, but her doctors refused to treat her, advising her to go to New York for the procedure.
“They are playing with people’s lives with this law,” Smith-Cunningham said.
Nicole Blackmon of Tennessee was told her pregnancy wasn’t viable and was potentially fatal. She was forced to continue the pregnancy due to Tennessee’s abortion ban.
“I was condemned to endure both physical and emotional torture, knowing that I was going to deliver a stillborn. How can Tennessee politicians stand by while this happens to people like me?”
Kelsie Norris-De La Cruz was diagnosed with an ectopic pregnancy that started to rupture after one Texas hospital turned her away.
“I was scared I was going to … lose my entire reproductive system if they waited too long,” she told The Washington Post.
Another woman in Texas miscarried in an ER lobby restroom after being refused treatment. And a North Carolina woman gave birth in a car, after she was refused treatment in the ER. Her baby later died.
There’s real jeopardy here: The lives of women and babies are clearly at stake. In a bad omen, the Supreme Court may have already tipped its hand in the case, as Slate’s Dahlia Lithwick explains.
“When a federal district court ruled in 2022 that Idaho’s abortion ban cannot trump EMTALA if a pregnant patient has a medical emergency that requires an abortion, the U.S. Supreme Court stepped in and put that order on hold,” Lithwick reported.
Republished with permission from Daily Kos.
