Idaho has become a new legal battleground in the fight to preserve access to abortion care and transgender medical care. Two court cases that originated from recent changes to Idaho law—Idaho v. United States and Poe v. Labrador—are at the heart of each respective fight. These cases, and the connections between them, reveal that patients and medical providers bear the ultimate consequences when a politicized judiciary fuels the politicization of medicine.
This column provides an overview of Idaho v. United States and Poe v. Labrador, followed by five connections between attacks on abortion care and transgender medical care in these cases.
What is transgender medical care?
Transgender medical care, also referred to as gender-affirming care, comprises a suite of medical care options to treat gender dysphoria—the medical diagnosis used to describe the psychological distress that results from an incongruence between an individual’s sex assigned at birth and their gender.
Transgender medical care is medically necessary and lifesaving. Like other medical care, treatment for gender dysphoria is not one-size-fits-all; rather, it is an individualized determination made with a patient’s team of health care providers in accordance with accepted standards of care. It may include medications that pause puberty, hormone replacement therapy, surgery, and more. Every major U.S. medical and mental health association supports access to this crucial medical care. Treatment for transgender and nonbinary patients is individualized, age-appropriate, designed in consultation with a team of medical professionals, and conducted in accordance with best-practice guidelines.
Transgender people, like everyone else, deserve access to the medical care they need. According to the 2022 U.S. Trans Survey, a survey of more than 90,000 transgender and nonbinary adults, 98 percent of respondents reported experiencing higher satisfaction in their life due to receiving hormone replacement therapy. Access to this care dramatically reduces risk of depression and suicide for those who need it: A separate 2022 study found that transgender youth ages 13–20 who were able to access care saw 60 percent lower odds of moderate to severe depression and 73 percent lower odds of self-harm or suicidal thoughts.
An overview of the 2 court cases
Idaho’s near-total abortion ban creates narrow carve-outs for abortion care, which carries steep criminal and civil penalties for medical providers who provide even lifesaving abortions. Idaho v. United States will determine whether these carve-outs conflict with the broader mandated requirements for medical providers under the Emergency Medical Treatment and Labor Act (EMTALA)—a law that requires hospitals that offer emergency services and participate in Medicare to provide stabilizing medical treatment, which has always included abortion care, to patients experiencing a medical emergency.
Learn more about Idaho v. United States
In Poe v. Labrador, the Idaho law at issue is H.B. 71, which functions as a statewide ban on transgender medical care for youth. H.B. 71 outlaws puberty blockers, hormone therapy, and surgeries if they are used to affirm the gender of transgender or nonbinary people younger than age 18. Furthermore, any medical professional who provides such care to people under the age of 18 can be charged with a felony and face up to 10 years in prison and $5,000 in fines. In Idaho, these criminal sanctions are equivalent to the prison penalty for involuntary or vehicular manslaughter. Notably, H.B. 71 does not provide an exception for youth who are already receiving care prior to the law taking effect, but it does provide an exception for surgeries on intersex youth, often called “normalizing surgeries.” Intersex advocacy organizations have condemned exceptions allowing normalizing surgeries because they are primarily performed on infants, without any patient consent.
At the time of publication, H.B. 71 is currently in effect in Idaho but does not apply to the families who initially brought this lawsuit. H.B. 71 was passed by the Idaho Legislature on March 29, 2023, signed into law by Idaho Gov. Brad Little (R) in April 2023, and set to go into effect in January 2024. However, two Idaho families with transgender children who were receiving gender-affirming care that would be outlawed under H.B. 71 brought a lawsuit against Idaho Attorney General Raúl Labrador on May 31, 2023, in the U.S. District Court of Idaho (Southern Division). The families asked for a review of the constitutionality of H.B. 71 on multiple grounds and for a preliminary injunction to temporarily pause the law from going into effect while litigation is ongoing. On December 26, 2023, Judge B. Lynn Winmill granted the plaintiffs’ motion for preliminary injunction after finding that the plaintiffs would likely succeed on their claims that the law is unconstitutional.
Although Alliance Defending Freedom (ADF), the legal counsel for the Idaho attorney general, appealed the District Court’s decision to the 9th Circuit Court of Appeals, where litigation remains ongoing, the case is also currently guided by a U.S. Supreme Court order. ADF filed an emergency stay application with the Supreme Court on February 16, 2024, arguing that the District Court ruling was overly broad in blocking H.B. 71 statewide and that the preliminary injunction should only apply to the two families that brought the case. On April 15, 2024, the Supreme Court majority issued an order that did everything ADF requested: It granted ADF’s request for a stay, reversed the District Court’s order on the preliminary injunction, and allowed an exception to the stay for the two plaintiff families. Notably, while the far-right extremist Supreme Court majority sided with ADF, Justice Elena Kagan denied the application of the stay entirely, while Justice Ketanji Brown Jackson and Justice Sonia Sotomayor dissented. Because of the Supreme Court’s order, H.B. 71 has gone into effect for the first time, and a new era has begun in Idaho.
In her dissent, Justice Brown Jackson describes the underlying analysis of the far-right Supreme Court majority in granting ADF’s stay as a “folly” in “taming our emergency docket”:
In my view, we should resist being conscripted into service when our involvement amounts to micromanaging the lower courts’ exercise of their discretionary authority in the midst of active litigation.
5 connections between abortion care and transgender care in these cases
A close look at Idaho v. United States and Poe v. Labrador reveals connections between attacks on abortion care and on transgender medical care in Idaho.
1. Chief strategists behind these cases
ADF is not just the principal litigator defending the state of Idaho in both cases; it’s also a chief strategist behind efforts to eradicate access to abortion and transgender medical care across the entire country.
The fact that ADF is behind both cases is not an anomaly, but rather consistent with the group’s founding, mission, and history as an evangelical legal advocacy group and a Southern Poverty Law Center-designated hate group. ADF was founded in 1994 with a clear agenda: to diminish the separation of church and state in order to uphold the values of Christian nationalism. The group has a long history of spearheading efforts restricting access to abortion and transgender medical care.
As it pushes to dismantle basic medical norms, ADF consistently capitalizes on its successes in one issue to bolster its efforts in another. A key example of this is its involvement in—and weaponization of—Dobbs v. Jackson’s Women’s Health Organization, which, by overturning Roe v. Wade, eliminated the constitutional right to abortion and left the question of abortion access to the states. ADF acted as the chief political and legal strategist behind Dobbs, arguing that Roe v. Wade can be overturned because the right to terminate a pregnancy is mentioned neither in the U.S. Constitution nor in the history and traditions of the United States. After the Supreme Court decided Dobbs in ADF’s favor, the organization leveraged the decision itself as proof that states could also ban transgender medical care, since this kind of care is also not mentioned in the U.S. Constitution. Since the court decided Dobbs in 2022, more than 20 states have passed laws banning access to transgender medical care for youth– many with ADF’s active support.
As ADF works to dismantle legal and statutory protections for bodily autonomy and gender equality, its actions demonstrate that transgender medical care is another clear target, along with reproductive care. The organization’s efforts have also played a critical role in fueling the politicization of medicine through an extreme judiciary.
2. Criminalization of medical providers
Both Idaho v. United States and Poe v. Labrador demonstrate how medical providers in Idaho are forced to live under the threat of severe criminal and civil sanctions for simply doing their job.
In terms of abortion care in Idaho, the threat of criminal charges may result in delayed patient care, if not an outright denial of abortion care that may be lifesaving. From the onset of Idaho v. United States, the U.S. Department of Justice explicitly noted that physicians will be reluctant to perform an emergency abortion procedure under threat of such severe criminal and civil sanctions. This is a clear pattern across the country: Several nationally publicized incidents revealed hospitals turning away patients who were experiencing pregnancy complications that required abortion care as a stabilizing medical treatment, out of fear of criminal and civil liability.
In terms of transgender medical care, there is uncertainty about how the criminal charges of H.B. 71 will apply in Idaho, as the ban only first went into effect on April 15, 2024. This lack of clarity is only exacerbated by the relative novelty of attaching criminal penalties to the provision of transgender medical care for youth; the first law doing so passed in Alabama in 2022. Similar to the mass chaos and confusion providers faced after the Dobbs decision, transgender medical care providers are left in a murky legal limbo that carries its own challenges for those who have continued to support youth and provide care in the state.
Hear from Cindy Davis, an OB-GYN from South Dakota, on the untenable position of trying to provide pregnancy care under the constant threat of criminal charges
3. Chilling effects on medical providers
The chilling effects of subjecting medical providers to severe criminal and civil penalties can already be seen in Idaho, and the consequences go far beyond abortion care and transgender medical care.
In terms of the criminalization of abortion care, the primary chilling effect is that the state is now grappling with a dearth of maternal care professionals and available facilities. In 2023, the Association of American Medical Colleges found that across all patients, Idaho already had the lowest number of active physicians per 100,000 patients, with fewer than 10 OB-GYNs per 100,000 patients. Compounding this challenge is the maternal mortality crisis, arguably rendering Idaho an unsafe place for pregnant people. Further, two maternal care facilities serving rural areas have shut down since Idaho’s near-total abortion ban was set to go into effect, worsening an exodus of OB-GYNs. One Idaho facility cited “some of the most restrictive reproductive laws in the country” as the reason for its closure, and almost all maternal health doctors who are considering leaving the state cited the criminal consequences in the state ban as the underlying reason for their departure. The chilling effect of the criminalization of abortion will exacerbate an already dire maternal health crisis in the state.
In terms of transgender medical care access in Idaho, the chilling effect on provision of care was evident even before the ban went into effect on April 15. In preparation for the bill to go into law in 2023, medical providers began referring their transgender patients to clinics in other states. Since then, travel time for teens attempting to access gender-affirming services in the state has more than doubled, increasing from 1.9 hours on average to 5.4 hours—all while patients under 18 could legally access care. Moreover, patients connecting to clinics out of state may have to contend with lengthy waitlists. Now that the ban has gone into effect, this delay in care for transgender youth in Idaho is only likely to grow.
Delays in accessing gender-affirming care is potentially life-threatening for patients. A 2023 study, for example, found that among transgender individuals experiencing suicidality, 52 percent of patients who were able to immediately access gender-affirming care reported their suicidality resolved. In stark contrast, only 5 percent of transgender patients reported their suicidality resolved if their access to care was delayed just three months.
Judges’ cherry-picking of evidence in support of personal ideology … highlights how the politicization of the judiciary is influencing the politicization of medicine.
4. Cherry-picked evidence
In both cases, conservative judges and ADF have seemingly ignored robust scientific evidence and instead cherry-picked evidence that suits their personal ideologies.
For example, in Idaho v. United States, the three-judge panel at the 9th U.S. Circuit Court of Appeals that reviewed an emergency appeal request from the state of Idaho—notably, all conservative Donald Trump appointees—concluded that medical providers were not subject to an irreconcilable conflict between the Idaho law and EMTALA, especially because of recent updates to Idaho’s abortion landscape. These shifts include the addition of ectopic pregnancies as an exception to Idaho’s law and the decision in Planned Parenthood Great Northwest v. Idaho, which held in broad and vague language that Idaho’s law “does not require objective certainty, or a particular level of immediacy, before the abortion can be ‘necessary’ to save the woman’s life.” In issuing this ruling, the judges seemingly ignored expert testimony and amicus briefs submitted by medical providers in Idaho, including three amicus briefs from medical associations and written testimony from emergency care providers that explicitly argued that these recent updates still put them in the untenable position of being criminalized under Idaho’s law for providing care that is required under EMTALA. Notably, emergency care providers in Idaho provided the stories of seven patients who recently experienced medical conditions that required an abortion as stabilizing medical treatment under EMTALA but did not fit into the exceptions of Idaho’s near-total abortion ban. In its decision, the three-judge panel failed to address any of this evidence presented to them.
As another example, in the Supreme Court stay application for Poe v. Labrador, ADF relied on a widely discredited 2018 study by public health researcher Lisa Littman to support its erroneous claim that as many as 90 percent of young people diagnosed with gender dysphoria desist from experiencing dysphoria into adulthood. Littman was required to issue a correction in 2019, admitting that participants were sourced largely from “anti-transgender websites and forums.” Reputable, peer-reviewed studies strongly support that the share of patients who stop accessing transgender medical care is consistently extremely low—generally between 1 percent and 2 percent.
Judges’ cherry-picking of evidence in support of personal ideology is part of a larger trend seen across different federal cases and further highlights how the politicization of the judiciary is influencing the politicization of medicine.
5. Carve-out exceptions to EMTALA
For both abortion care and transgender medical care, there are potential long-term consequences if state legislators have the power to carve out exceptions to EMTALA.
For example, health policy professor Sara Rosenbaum has noted that if the Supreme Court finds that Idaho’s near-total abortion law is not in conflict with EMTALA, the court would be granting the state permission to “carve a single condition (pregnancy) out of the statute.” Depending upon the Supreme Court’s analysis, Rosenbaum also asserts that it “could open the door to state laws aimed at interfering with the reasonable practice of emergency medicine for other disfavored conditions or populations.” This could result in carve-outs ranging from AIDS-related emergencies to high-cost conditions.
If carve-out exceptions to EMTALA are allowed, it also paves the way for medical providers to refuse any emergency medical care to transgender people—even if the care is not related to gender-affirming care. Currently, nine states allow medical providers to refuse to treat LGBTQ patients. In these states, EMTALA provides key protections to ensure LGBTQ patients must at least receive emergency care. Allowing exemptions to EMTALA would weaken these crucial protections and could provide a legal pathway for emergency medical providers to refuse even emergency treatment to LGBTQI+ patients.
Conclusion
Threats to abortion care and gender-affirming care are interconnected, strategic, intentional, and have been successful thus far. To mitigate the politicization of medicine at the hands of an activist judiciary, both patients and medical providers must be protected.