U.S. Supreme Court ruling reinstates ability to perform emergency abortions in Idaho under ban

An upside down flag at a Planned Parenthood rally about the EMTALA case in Boise, Idaho on April 21, 2024. (Otto Kitsinger for Idaho Capital Sun)

Emergency abortion care can continue in Idaho without fear of prosecution of physicians now that the U.S. Supreme Court issued a decision Thursday remanding a case about emergency abortions in the state back to the Ninth Circuit Court of Appeals.

The 2022 case came soon after the Supreme Court’s Dobbs decision that June that overturned Roe and returned regulation of abortion procedures to the states. The U.S. Department of Justice sued Idaho to block it from enforcing its criminal abortion ban for emergency room physicians who might need to perform an abortion when a patient is at risk of infection or other potentially serious health problems during pregnancy. The Justice Department said prosecuting physicians under those circumstances would violate the federal Emergency Medical Treatment and Labor Act, or EMTALA, which requires Medicare-funded hospitals to treat patients who come to an emergency room regardless of their ability to pay.

The justices affirming the decision said the court took the case too early in the process. It granted a request to hear the case in January before the Ninth Circuit Court of Appeals could hold its own hearing on an injunction that blocked enforcement of the abortion restrictions law

The decision was 6-3, with conservative Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissenting. It was issued “per curiam,” meaning there is no lead author of the overall opinion.

When justices agreed to hear the case, the court also dropped the injunction, leaving doctors in Idaho open to criminal prosecution, which carries penalties of jail time, fines and the loss of a medical license. Idaho’s civil law also allows immediate and extended family members to sue the doctors for up to $20,000 over an abortion procedure.

During a press meeting on Thursday, Idaho Attorney General Raúl Labrador said while he was disappointed by the ruling, there were aspects of the case to be pleased about. He said the government’s interpretation of EMTALA, which he called overly broad at the beginning of the case, was now much narrower.

“If you read the opinion closely, what they’re saying is that the government makes so many concessions in their briefing and in their oral arguments that it doesn’t need to be expedited like it was,” Labrador said.

Idaho’s ban contains an exception to save the pregnant patient’s life, but not to prevent detrimental health outcomes, including the loss of future fertility, which is a risk with severe infection or bleeding. Without further clarity written into the law, doctors have said they can’t confidently assess when to safely intervene to save someone’s life and what constitutes a “good faith” judgment. Rather than take the chance, high-risk obstetric specialists have airlifted patients to a facility out of state that can freely perform the procedure before it’s too late. In 2023, the state’s largest hospital system said at their facilities such transfers happened once, but occurred six times between January and April, when the injunction was lifted.

Labrador said those transfers were unnecessary and that doctors are being misled and confused by “pro-abortion lawyers” who are giving them inaccurate information about the law.

Justice Amy Coney Barrett, who is typically conservative in her rulings, said the court’s decisions to hear the case and drop the injunction were premised on the belief that Idaho would suffer “irreparable harm” under the injunction and that the cases were ready for the court’s immediate determination. She wrote that the briefings and oral argument in April shed more light on the case, and made it clear that conscience objections were covered under EMTALA and other concerns about an interpretation that would include emergency mental health concerns did not apply.

“I am now convinced that these cases are no longer appropriate for early resolution,” Barrett wrote.

The case now returns to the Ninth Circuit to resume the en banc hearing process that was originally scheduled in January. After that hearing, it could take six months or longer for the appeals court to issue a decision. If that decision is not in Idaho’s favor, it’s expected that the state would again appeal the case to the U.S. Supreme Court.

One of the court’s more liberal members, Justice Ketanji Brown Jackson, wrote that the decision is not a victory for pregnant patients in Idaho and is merely a delay.

“While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires,” she wrote. “This court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”

On the other side in a dissenting opinion, Alito said there was plenty of information available to make a decision rather than remand the case, writing, “Apparently, the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”

By Alito’s interpretation, EMTALA does not require that an abortion be performed in any emergency medical circumstance, even if the pregnant patient says she wants one. He compared it to cancer treatments, saying just because a patient might want a certain drug for treatment doesn’t mean they can receive it.

“Likewise here, a woman’s right to withhold consent to treatment related to her pregnancy does not mean that she can demand an abortion,” he wrote. “For these reasons, the text of EMTALA conclusively shows that it does not require hospitals to perform abortions.”

He also argued an interpretation of EMTALA that includes abortion care as a treatment in emergency situations would conflict with other laws prohibiting federal funds from being used for abortions.

Alito also disagreed that the idea of using mental health as a reason for an abortion in an emergency room had been resolved during oral argument, because the American Psychological Association says it is an acceptable form of treatment for a mental health issue. However, Idaho’s largest health system told States Newsroom in April that would never be the accepted form of stabilizing care for someone presenting to an emergency room with a mental health crisis. They would instead first make sure the patient cannot harm themselves or anyone else and potentially refer them to a psychiatric facility for further assessment.

Physicians seek more clarity about law

The Idaho Medical Association issued a statement Thursday morning saying the decision provides limited relief for doctors who have patients with complicated pregnancies and emergency situations.

“We still need more clarity for our state’s doctors.  Even with the court reinstating EMTALA protections, Idaho’s restrictive abortion laws create confusion about whether necessary care is legal care,” said Dr. Megan Kasper, an OB-GYN in the Boise area. “No Idaho woman should be forced to leave the state to get the care she needs.”

Susie Keller, chief executive officer of the Idaho Medical Association, said Idaho legislators need to pass a women’s health exception to stabilize the healthcare workforce and slow the exodus of physicians from the state, which has lost 55% of its maternal-fetal medicine specialists in the past two years and a number of OB-GYNs. Administrative officials at Idaho hospitals have said they can’t find people to replace those losses and that out-of-state applications have dropped dramatically.

“We need a clear maternal health exception in Idaho’s abortion ban because physicians are leaving, patients are suffering, and the inability to replace these doctors is putting our entire health care system at risk.  We have to stop digging this physician workforce hole that will take years, if not decades, to backfill,” Keller said.

Labrador rejected the idea that people aren’t coming to Idaho because of the abortion laws, calling it a “little narrative” and saying it might be less attractive to liberals who want to have abortions, but it’s attractive to people with conservative values.

He added that he thinks people in the medical community who want abortions are “exaggerating or lying” about their concerns.

“Yes, some doctors are leaving. Why? Because they were making the vast majority of their money on abortions, or they wanted to live in a place that allowed abortions,” Labrador said Thursday. “But there’s a bunch of doctors that are coming to Idaho, so this narrative that’s out there is completely false and Idaho will always be the best place to live.”

Labrador did not offer any evidence that the doctors who left were making any money through providing abortions, instead saying it was just by implication. As of 2022, Idaho had one of the lowest numbers of active physicians in the country across all specialties.

Dr. Caitlin Gustafson, president of a group of Idaho physicians who have spoken out against the ban and submitted a brief to the court in the case, said the decision is not the end of her coalition’s work.

“While we are relieved that the lower court’s injunction and we will temporarily have protections in place for emergency abortions, this care should never be in question to begin with,” Gustafson said. “This ruling only addresses a small part of the ever-increasing barriers across the healthcare landscape.”

Melanie Folwell, spokesperson for a group of residents and medical professionals from across Idaho working on a ballot initiative to restore abortion access more broadly through citizen-led legislation in 2026, said the temporary protection provided by the court decision makes their work all the more important moving forward.

“Idaho’s laws remain some of the worst in the nation for doctors and pregnant women,” she said. “As long as politicians are determined to infringe upon our most sensitive, personal, and urgent medical decisions, Idahoans United for Women & Families will seek a fix to our broken laws through a citizens’ ballot initiative.”

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