The US supreme court is on the verge of being dragged back into the abortion wars.
Eighteen months after the court’s conservative majority overturned Roe v Wade and abolished the national right to abortion, the state of Idaho, represented by the conservative legal powerhouse the Alliance Defending Freedom (ADF), has asked the nation’s highest court to allow a law that penalizes abortion providers. The state is requesting that the court halt a federal court decision finding that Idaho’s ban conflicts with government rules governing the provision of emergency care.
Justice Elena Kagan has asked for additional briefing in the case by Thursday afternoon. The justices may rule anytime after that.
Idaho has implemented a near-total abortion ban that only permits abortion to save the life of a pregnant woman. Doctors have said that this kind of language is too vague and ignores the complex reality of pregnancy; in practice, they say, exceptions like Idaho’s force them to wait and watch until patients become sick enough for doctors to legally intervene, imperiling their long-term health and even risking their lives.
In its first legal action to protect abortion access after Roe’s demise, the justice department in August 2022 sued Idaho over its law, claiming that it violated the federal Emergency Medical Treatment and Labor Act, or Emtala. After Roe fell, the Biden administration issued guidance clarifying that Emtala, which requires hospitals that receive federal funding to treat people in medical emergencies, also requires that doctors provide emergency abortions to people who need them.
Weeks after the justice department sued, a federal district judge sided with the Biden administration and ruled to block the provisions of Idaho’s ban that the judge said clashed with Emtala.
“When pregnant women come to a Medicare-funded hospital with an emergency medical condition, Emtala obligates the treating physician to provide stabilizing treatment, including abortion care. But regardless of the pregnant patient’s condition, Idaho statutory law makes that treatment a crime,” the US district judge B Lynn Winmill wrote in his ruling.
This fall, a panel of judges on the US court of appeals for the ninth circuit put Winmill’s ruling on hold while litigation plays out. However, days later, a larger panel of judges walked back that decision and agreed to rehear the matter.
Abortion opponents have rejected the interpretation that Emtala protects abortion access in medical emergencies.
“Emtala ensures that patients are not denied treatments that are authorized under state law because of an inability to pay. It does not ensure that patients are offered unauthorized treatments,” lawyers for the ADF wrote in their petition to the supreme court. “There is no abortion-access purpose hiding in the 37-year-old Emtala statute.”
Earlier this month, the Biden administration argued before a different federal appeals court, the notoriously conservative fifth US circuit of appeals in New Orleans, that emergency room physicians should be told they can perform abortions in emergencies – even if they believe that an abortion would violate Texas’s near-total abortion ban. A federal court judge last year ruled to block the Biden administration from enforcing its Emtala guidance in Texas.
Generally, the US supreme court is more likely to get involved in a case when appeals courts in different parts of the country issue conflicting rulings – as is now the case in Idaho and Texas.
“They’re probably eventually going to have to rule on the Emtala issue,” Joanna Grossman, a law professor at the Southern Methodist University Dedman School of Law. “I don’t think the supreme court is getting their way – they wanted Dobbs to be the last word on abortion,” she continued, referring to the case that overturned Roe.
Another lawsuit currently unfolding in Texas state court seeks to clarify when doctors can perform abortions in medical emergencies. Both cases, Grossman said, are about the same fundamental question: when do people need abortions?
“Can you draw a line between abortions that are medically necessary and ones that aren’t? Is that even possible? And if you could draw a line, who gets to draw the line?” Grossman said. “That’s really getting at pretty core issues on who regulates abortion, or who has control over the abortion issue.”
Now that 16 states ban almost all abortions, activists on both sides have repeatedly clashed over the feasibility of exceptions written into abortion bans. Dozens of women from states across the country have said they were denied abortions in medical emergencies, despite exceptions that were supposed to guarantee their safety in those situations. Some anti-abortion activists, meanwhile, claim that there are no medical emergencies that would justify the intentional termination of a fetus.
Hospitals in Missouri and Kansas violated Emtala when they denied a woman an abortion, the Biden administration found in an investigation earlier this year. The Center for Reproductive Rights has also filed a complaint against a hospital in Oklahoma, after a woman said she was denied treatment for a nonviable pregnancy there.
The supreme court has also been asked to weigh in on another case brought by anti-abortion groups seeking to suspend FDA authorization for a key abortion pill. The justices have not yet said whether they will take that case.
Lawyers for the ADF said in court papers that if the supreme court takes up the Idaho case, arguments could be scheduled for as soon as April 2024. If this happens, the justices would rule by summer 2024 – months before the presidential election.
