The Supreme Court hears yet another abortion case on Wednesday. This one tests whether a state can prevent a pregnant woman from receiving what her doctors say is essential medical treatment, including the termination of a pregnancy, if her health, but not her life, is in grave danger.
In 1986, Congress passed the Emergency Medical Treatment and Labor Act, or EMTALA. The law provides that hospitals receiving Medicare and Medicaid payments from the federal government — and that is most hospitals — must provide stabilizing care for any patient whose life or health is in serious jeopardy. If the hospital can't provide the care, it is required to provide safe transport to another hospital that can.
That was all well and good until the Supreme Court's 2022 Dobbs decision, which struck down Roe v. Wade and returned the abortion question to the states. Since then, a handful of states have adopted laws that make it illegal to provide standard emergency treatment that includes terminating a pregnancy if the woman's health, but not her life, is in imminent danger.
The facts of the case
Wednesday's test case comes from Idaho, where the law banning abortions is sufficiently strict that the state's leading hospital system says its patients are at risk.
"There are patients who present with conditions that are very serious that could result in loss of reproductive organs, that could result in permanent disability and that could eventually become life threatening but that are not at that moment life threatening," says lawyer Lindsey Harrison. She represents St. Luke's Health System, Idaho's only not-for-profit community-owned and led hospital system, which operates nine emergency departments in the state.
"For physicians at St. Luke's hospitals ... there's a conflict between what federal law says they should do, which would allow them to save the patient's organs ... and what Idaho allows them to do, which is nothing, until the patient's life is at risk," Harrison says.
The result is that patients often have to be transferred by ambulance or helicopter out of state, and arranging that takes time, especially in rough Idaho winters. "That delay itself can cause a lot of harm to the patient," she adds.
The state of Idaho maintains that it does, in fact, protect women, including allowing the termination of a pregnancy when medically necessary. But after the Supreme Court's 2022 abortion decision, the state enacted a law that makes it a felony for doctors to terminate a pregnancy except to save the life of the mother.
The arguments
John Bursch, one of the lawyers representing Idaho in the Supreme Court, blames the Biden administration for issuing new guidance on how to carry out the federal law on pregnancy-related emergencies.
"What's different about EMTALA is that it's built on the Medicare Act, and the Medicare Act is built on a foundation of state law," Bursch asserts. "It says hospitals must assure that their personnel meet applicable standards required by state or local laws." He is adamant that "EMTALA does not enforce a national standard of care."
The federal government, backed by the American College of Emergency Physicians and the American Hospital Association, counters that the whole purpose of EMTALA was to establish a national baseline for emergency care and to ensure that uninsured patients would not be turned away.
"EMTALA would be meaningless if state laws could simply write exceptions to the emergency stabilization requirement," says Alexa Kolbi-Molinas, deputy director of the ACLU's Reproductive Freedom Project. "That's why this argument that Idaho has the right to carve out certain conditions or treatments from EMTALA is simply incorrect."
Kolbi-Molinas maintains that the Biden administration's new guidance to hospitals after the Dobbs decision is the kind of advice that the Centers for Medicare and Medicaid Services routinely put out to remind hospitals of their obligations under the federal emergency care law.
Bursch disputes that. "EMTALA does not require any specific medical standards. It is built on this foundation of state law. And state law requires that you preserve life whenever it's possible."
He notes that EMTALA in four different places makes reference to the life of the unborn child, but if it's not possible to save both mother and child, "then the Idaho Defense of Life act says protect the life of the mother, and it's unequivocal about that."
Short of a life-or-death situation, however, Idaho currently does not allow saving a mother's health regardless of the likelihood that the failure to act could leave the woman with lifelong health consequences. That can mean that "If you wait too long, until a patient is on the brink of death, it may simply be too late," according to the ACLU's Kolbi-Molinas.
The Biden administration argues that because the Idaho law only allows abortion "to prevent the death of the pregnant woman," it directly conflicts with EMTALA, which allows pregnancy termination to prevent "serious harm to the woman's health."
A conflict within the law?
Under the Constitution, when there is a conflict between state and federal law, the federal law prevails over the state law.
Idaho, however, contends that there is no conflict with EMTALA because the law is part of the Medicare Act, which defers to state regulation of doctors and nurses. Essentially, the state says that when the Supreme Court returned the abortion issue to the states, Idaho was free to draw the line as it has, at banning abortions except to save the life of the mother.
St. Luke's, in its Supreme Court brief, says it is not always easy to draw that line, thus exposing doctors and nurses to the risk of criminal prosecution and license suspension. As a result, the hospital system says, doctors and nurses are fleeing the state, creating ob-gyn shortages that are so "dire" that hospitals are simply shutting down their labor and delivery services and even neo-natal intensive care programs.
The prospects for that changing are not auspicious. Two lower courts initially blocked the Idaho abortion law on the ground that it conflicted with EMTALA. But in January, the Supreme Court granted Idaho's request and allowed the law to go into effect while the court considers the case. That action is a preliminary indication that a majority of the justices are inclined to agree with Idaho.
