The stakes are immeasurably high for women and their doctors in Idaho v. United States, a legal case that is scheduled for oral arguments at the U.S. Supreme Court on April 24, 2024. The court is set to determine whether the narrow carve-outs for abortion care under Idaho’s near-total abortion ban—which carries steep criminal and civil penalties for medical providers—conflict with the broader mandated requirements for medical providers under the Emergency Medical Treatment and Labor Act (EMTALA). The irreconcilable conflict presents an untenable choice for medical professionals: either violate Idaho’s law under risk of criminal prosecution and loss of their professional license or violate EMTALA and face federal enforcement and civil sanctions.
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Tell the Supreme Court: Protect Emergency Abortion Care Under EMTALA
Abortion care under EMTALA
EMTALA requires hospitals that participate in Medicare—as nearly every hospital in the United States does—and that offer emergency services to abide by three principles for every patient that enters the hospital: 1) screen for an emergency condition, 2) stabilize the patient, and 3) transfer or discharge the patient under specific circumstances. Therefore, when an abortion is necessary to stabilize the health of a pregnant woman experiencing an emergency medical condition, a physician must provide an abortion under EMTALA with the patient’s express consent. Physicians and medical advocacy groups have provided a plethora of examples to the Supreme Court of when they must provide an abortion for a pregnant woman experiencing an emergency medical condition—such as preeclampsia, HELLP syndrome, septic abortions, and hypovolemic shock due to blood loss—or another condition that can occur concurrent with pregnancy, including cancer, pulmonary hypertension, and heart failure.
Background: A timeline of events
In 2020, prior to Dobbs, the state legislature of Idaho passed a near-total abortion ban. Codified at Section 18-622 of the Idaho Code, the ban outlawed abortion at almost every point in pregnancy; it also included a “trigger” provision so that the law would go into effect 30 days after the Dobbs decision. Under Section 18-622, Idaho enacts criminal and civil punishments for anyone who provides an abortion outside of the three narrowly defined circumstances of an ectopic or molar pregnancy; a pregnancy resulting from rape or incest; or a pregnancy to save the life of a pregnant women.
Before the Idaho law went into effect, the U.S. Department of Health and Human Services issued official guidance on July 8, 2022, reinforcing what has been the law for more than two decades—that women have always had and must continue to have the right to a full spectrum of emergency medical care, including abortion and pregnancy care if necessary, under EMTALA. Later, on August 2, 2022, days before the Idaho law was scheduled to go into effect, the U.S. Department of Justice (DOJ) filed a complaint against the state of Idaho in the U.S. District Court of Idaho (Southern Division), on the ground that Section 18-622 directly conflicts with parts of EMTALA. The complaint specified that medical providers would be subject to criminal and civil sanctions for providing abortion care as a stabilizing treatment, which may be required under EMTALA. For this reason, the DOJ sought a preliminary injunction—or temporary pause—on Section 18-622 becoming official law in Idaho. On August 24, 2022, the U.S. District Court of Idaho sided with the DOJ and granted the preliminary injunction, preventing Section 18-622 from becoming law as it applies to EMTALA.
The state of Idaho and the Idaho Legislature eventually appealed the case to the 9th U.S. Circuit Court of Appeals and filed an emergency request for certification to the Supreme Court. On January 5, 2024, the Supreme Court granted the certification request, agreed to officially review the legal issues in the case, and allowed the preliminary injunction to be lifted. This meant that Section 18-622 was allowed to become law for the first time after two years of litigation.
The who, what, and where of Idaho v. United States
The who:
The litigators: The DOJ originally filed this case against the state of Idaho. The state legislature of Idaho, which passed Idaho’s near-total abortion ban, formally asked the court if it could become an official party to the case because of its “extensive experience” with Section 18-622. Alliance Defending Freedom (ADF)—a far-right, extremist legal organization—is representing the state of Idaho and its legislature. Notably, ADF is also the legal team litigating Alliance for Hippocratic Medicine v. Food and Drug Administration (FDA), another abortion-related case that seeks to eliminate access to medication abortion. That case is expected to be decided by the Supreme Court in spring 2024.
Read more on the Alliance case
The medical providers: Under the current law, if a medical professional provides an abortion outside of the three narrow exceptions to Idaho’s near-total abortion ban, they have committed a crime in Idaho and are subject to formal criminal prosecution. There is no defense in a court of law available to physicians outside of these circumstances. This means that if anyone provides an abortion as a stabilizing treatment because the patient’s health is in serious jeopardy, then they have committed a crime under the law and could be prosecuted.
Yet as noted by the DOJ in its initial complaint in this case, these punishments extend beyond physicians and include anyone whose role in a procedure could constitute “assisting” in the performance of an abortion, such as triage nurses, scrub nurses, lab techs, radiologists, and anesthesiologists. Moreover, the criminal charge for providing an abortion is the highest charge possible—a felony—with a minimum of two years in prison. Providers are also at risk of having their professional licenses suspended for at least six months upon a first offense and then permanently revoked upon a subsequent offense.
The chilling effects of subjecting providers to criminal penalties can already be seen in Idaho. Despite Idaho already ranking last among states in active physicians—of all practices—per capita, with less than 10 OB-GYNs per 100,000 patients, the state is grappling with a mass exodus of OB-GYNs. Notably, almost all of maternal health doctors who are considering leaving the state cited the criminal consequences in the state ban as the underlying reason for their departure.
Dr. Andrea Palmer, an OB-GYN from Texas, shares how abortion care is pregnancy care.
The patients: The patients who are directly affected by Section 18-622 are pregnant women who require an abortion as a form of stabilizing treatment when an emergency medical condition arises. However, under Section 18-622, a pregnant woman experiencing what amounts to an emergency medical condition will not get an abortion as a stabilizing treatment until she is at risk of death. For pregnant patients, the consequences of delay in care are profound. Both the district court decision and multiple amicus briefs submitted by medical professionals and emergency care physicians have listed the grave long-term consequences, which include severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, and permanent fertility issues.
The what:
The specific legal question in Idaho v. United States is whether the most current form of Section 18-622 criminalizes medical care that is required under EMTALA, which in turn triggers the issue of “preemption.” Preemption is the idea that federal law must override—or preempt—state law in issues of direct conflict under the Supremacy Clause of the U.S. Constitution. The Supremacy Clause asserts that both the Constitution and federal law take priority over any conflicting state laws, ensuring that the Constitution and federal law remain the “supreme law of the land.” In modern times, many federal statutes—such as EMTALA—contain an express preemption provision written into the respective statute to ensure that federal law overrides state law in the event of a direct conflict.
Currently, a physician’s ability to provide an abortion in Idaho is determined by two things: 1) Section 18-622, which the Idaho Legislature updated in April 2023, and 2) a decision from the Idaho Supreme Court in a separate legal case, Planned Parenthood Great Northwest v. Idaho. While the Idaho law details the narrow exceptions for abortions, in the legal case, the Idaho Supreme Court held in broad and vague language: “The statute does not require objective certainty, or a particular level of immediacy, before the abortion can be ‘necessary’ to save the woman’s life.”
Physicians are thus faced with an untenable choice—either withhold critical stabilizing treatment required under EMTALA or risk criminal prosecution and potential loss of their professional license.
However, the Planned Parenthood Great Northwest v. Idaho decision and three exceptions in Section 18-622 do not change the irreconcilable conflict physicians are forced to face in the emergency room. EMTALA requires stabilizing treatment for any emergency medical condition, not just those treatments intended to prevent death or to terminate specific kinds of state-approved medical conditions. Under Section 18-622, an emergency room physician who concludes that a pregnant woman needs an abortion to stabilize a condition that would otherwise threaten serious and irreversible harm may not provide the necessary care unless and until the patient’s condition deteriorates to the point where a physician is “objectively certain” that an abortion is needed to save her life.
Physicians are thus faced with an untenable choice—either withhold critical stabilizing treatment required under EMTALA or risk criminal prosecution and potential loss of their professional license by providing stabilizing treatment for pregnant women in dire medical need of an abortion.
The DOJ has repeatedly argued in Idaho v. United States that the delay in emergency care alone thwarts the federal objectives of EMTALA. One of Congress’ objectives in passing EMTALA was to guarantee nationwide emergency medical care at Medicare hospitals. However, as the physician waits for the patient’s condition to deteriorate to the point that an abortion is needed to save their life—or waits for the approval of the hospital’s legal department to perform the abortion, which has happened repeatedly across the country—the patient is not receiving the stabilizing treatment they are guaranteed under federal law.
The where:
This case started in Idaho, which is in the midst of a maternal care crisis. Idaho’s maternal mortality rate has more than doubled from 18.1 deaths per 100,000 births in 2019 to 40.1 deaths per 100,000 births in 2021. This crisis in maternal care is exacerbated by the fact that maternity wards have shut down in Idaho, citing the abortion ban as the primary reason. The lack of facilities, compounded by the exodus of OB-GYNs on top of the skyrocketing mortality rate, highlights a simple truth: Idaho is an unsafe place for pregnant women.
The lack of facilities, compounded by the exodus of OB-GYNs on top of the skyrocketing mortality rate, highlights a simple truth: Idaho is an unsafe place for pregnant women.
However, the outcome of Idaho v. United States extends to every pregnant woman, medical provider, and EMTALA-certified facility in the United States. Even though, in Dobbs, the Supreme Court majority “[left] the question of abortion for the people and their elected representatives in the democratic process,” a decision in Idaho v. United States will affect every state, even where voters have fought to ensure that abortion is legal.
Conclusion
Idaho v. United States highlights the mess the Supreme Court has made and how vulnerable pregnant women and the providers in charge of their care will continue to bear the consequences of its decision to eradicate legal precedent and the constitutional right to an abortion.