Idaho Abortion Ban Again in Spotlight Over Clash With US Policy

A federal appeals court on Tuesday is hearing arguments on whether a federal emergency medical care law overrides Idaho’s near-total abortion ban, in a closely watched case with the potential to more clearly define abortion rights post-Roe v. Wade.

The federal Emergency Medical Treatment and Labor Act requires hospitals to provide stabilizing care before transferring or discharging a patient with an emergency medical condition. The Biden administration says that mandate means Idaho can’t enforce its criminal abortion law to the extent it would prohibit abortion as stabilizing care.

But Idaho says there’s no conflict between the laws because the state allows procedures necessary to save the pregnant person’s life.

The stakes are high for the en banc US Court of Appeals for the Ninth Circuit, attorneys say.

Reproductive rights groups argue that ensuring people can get stabilizing abortion care is essential to protect women’s lives, while anti-abortion organizations say the Biden administration is simply trying to undo Dobbs v. Jackson Women’s Health Organization, which overturned Roe in 2022.

The justices made waves last June when they reinstated a lower court order blocking Idaho from prosecuting doctors in the state who perform abortions to stabilize patients. The high court didn’t explain its decision, leaving it to the Ninth Circuit to determine the issue on the merits.

Despite sending the case back to the lower court, it’s highly likely the Supreme Court will be asked to resolve the issue.

Greer Donley, a University of Pittsburgh Law School professor who studies abortion law, said the Ninth Circuit’s decision could conflict with one from a federal court in Texas that rejected the US’s arguments. That suggests the justices ultimately will take up the case, she said.

That’s potentially good news for the health-care industry, which is looking for clarity amid the federal-state tension on emergency abortions.

“Hospitals are in a terrible position right now,” Donley said.

Seeking Clarity

There’s confusion about what EMTALA requires hospitals to do about abortion care to maintain their Medicare provider status. For example, it’s unclear whether they must perform an abortion just to save a person’s life, or whether they also must do so to protect a person’s health.

And in the six states where abortions are banned except to save a life, physicians don’t know when that exception kicks in.

There’s anecdotal evidence of doctors in states such as Texas, California, and Georgia refusing to perform abortions in emergencies until it’s too late or nearly so, said Alexa Kolbi-Molinas, deputy director of the American Civil Liberties Union’s reproductive freedom project. The ACLU filed an amicus brief supporting the government.

Hospitals that delay or deny stabilizing abortions risk incurring licensing sanctions and civil liability, along with an EMTALA investigation by the Centers for Medicare and Medicaid Services, said Jill Steinberg, a partner in ArentFox Schiff LLP’s health-care group.

But doctors risk criminal charges at the state level if they provide the care, she said.

This case could impact every pregnant person in the country, Kolbi-Molinas said. Women already have died as a result of delayed or denied emergency abortion care in states with highly restrictive laws, she said.

John Bursch, senior counsel at the conservative law firm Alliance Defending Freedom, said EMTALA doesn’t set a national standard of care, nor does it suggest that the US can force hospitals to engage in conduct that would be illegal in their states.

This a test case brought by the US in an attempt to create a nationwide “unbounded abortion mandate,” said Bursch, who will be presenting arguments alongside counsel from the Idaho attorney general’s office.

New Data, Arguments

Donley said she’s interested to see how the Ninth Circuit explores EMTALA’s scope, such as whether the federal law requires an abortion to stabilize a mental health emergency.

The US solicitor general previously said EMTALA doesn’t apply in those circumstances, but Bursch said the administration has since rolled back that concession.

The court is also expected to hear about new data on how Idaho’s law has affected emergency care, developed during the months when the Supreme Court had temporarily allowed Idaho’s ban to take full effect, she said.

Bursch disputes that it’s impossible for doctors to comply with both the state and federal law.

Abortions are legal in Idaho once it’s clear they’re necessary to save the pregnant person’s life. Doctors should observe patients and act only when their lives are in danger, he said.

But EMTALA applies more broadly to situations where abortions may be medically necessary to stabilize conditions that aren’t necessarily life-threatening, Kolbi-Molinas said.

These issues won’t be resolved any time soon, even after the Ninth Circuit decides the case, Steinberg said. Until the Supreme Court weighs in, there’s going to be more litigation, she said.

The case is United States v. Idaho, 9th Cir. en banc, No. 23-35440, oral arguments scheduled 12/10/24.