This week, the Supreme Court will hear a case that could have devastating and widespread consequences for pregnant patients, their families, and their health care providers—yes, even considering where we currently are with reproductive health care in this country. It involves Idaho’s near-total abortion ban, which makes it a crime for the state’s physicians to terminate a pregnancy, even when termination is necessary to protect the mother’s health. As a result of that state’s cramped statutory exceptions for emergency abortion care, a woman showing up to an ER in Idaho could be at imminent risk of losing her reproductive organs, and yet a physician could still not be allowed to end her pregnancy to save them, unless or until she is about to die.
By contrast, right now, a federal law called the Emergency Medical Treatment and Labor Act requires that hospitals that participate in Medicare (meaning virtually every private hospital in the country) provide stabilizing care when the health of a patient is in serious jeopardy. As any emergency physician can explain, sometimes an abortion is the stabilizing care necessary to protect a patient’s health: to avoid loss of reproductive organs and fertility, loss of other organs, permanent disability, severe pain, dire mental health results, and a host of other horrible consequences, including—but also short of—risk of imminent death.
Before Idaho’s law took effect, a federal district court in the state found that EMTALA and the Idaho law conflict: When a pregnant patient needs an abortion to stabilize a health emergency and consents to receive one, federal law requires that her doctors give her an abortion. The Idaho ban therefore criminalizes what federal law requires. Whenever that happens, the Constitution’s supremacy clause says federal law wins: Under what’s known as the preemption doctrine, federal law is the “supreme Law of the Land” and overrides the conflicting state law. The Idaho court thus temporarily ordered an exception to the Idaho law, allowing physicians to terminate a pregnancy when EMTALA requires it.
In January, however, the Supreme Court disagreed. Leaping into the case before it was conclusively resolved, the high court issued a stay allowing Idaho’s law to take effect again, despite the conflict with EMTALA, ruling on its “shadow docket” and offering no opinion explaining its reasoning. On Wednesday, in the final week of the court’s term, the justices will hear oral argument in the case. They have an opportunity to undo the harm their earlier ruling has already caused. Their decision will affect the law not just in Idaho but in every state whose laws clash with EMTALA.
In the weeks since the high court paused EMTALA and allowed Idaho’s more stringent ban to go into effect, health care providers have experienced what can been seen only as a natural experiment in what happens when physicians are barred from delivering the kinds of medical assistance that is widely understood to be the standard of care in emergency rooms. Whereas the justices may have been able to plausibly claim back in January that they had no idea what it would mean to turn away patients who should have received stabilizing care under EMTALA, we now know. In fact, we can measure the harms. And in Idaho, over just a few months, the consequences of the Supreme Court’s stay have been devastating.
St. Luke’s Health System is the largest private employer in the state of Idaho and treats by far the most emergency patients. (Disclosure: Lindsay Harrison is counsel of record for St. Luke’s in the case.) In an amicus brief submitted to the court in this lawsuit, St. Luke’s explains that since the stay was imposed, it has continued to see patients with emergency medical conditions posing severe health risks short of death and that, as a result of the stay, those patients are suffering.
Because of the stay, Idaho physicians have essentially two options: First, because Idaho’s ban still allows for abortions to prevent death, they can certainly wait until the risks to a patient’s health become life-threatening. But the conditions that come with this state can be extremely painful. And if untreated, they can cause serious health complications, including systemic bleeding, liver hemorrhage and failure, kidney failure, stroke, seizure, and pulmonary edema. In these situations, watching a patient suffer and deteriorate until death is imminent is intolerable to most doctors. It is also medically unsound and dangerous.
Their best option is therefore the second and only alternative: Transfer the patient out of state. But this delays critical emergency care while transport is arranged, still forces patients to endure serious physical pain, and still risks potentially grave complications. It also distances patients from their families, homes, and support networks at a time when they most need them. And it is expensive and wholly unnecessary.
Despite the serious downsides of transfer, the numbers show starkly how that option has become the new “standard of care” in Idaho. In the whole of 2023, before Idaho’s law was in effect, only one pregnant patient presenting to St. Luke’s with an emergency was transferred out of state for care. Yet in the few months the new abortion law has been in effect, six pregnant St. Luke’s patients with medical emergencies have been transferred out of state for termination of their pregnancy. This is a dramatic change for a small state like Idaho, and what it shows is that the new crabbed definition of stabilizing care is already harming pregnant women. In an extremely short time, we have seen precisely the uptick in transfers that could have been predicted when SCOTUS allowed Idaho to end-run the federal statute: More patients are harmed, more patients are sent long distances for care, and more providers find themselves unable to offer necessary care.
Congress passed EMTALA decades ago to solve a serious problem—hospitals were dumping patients on other hospitals without considering their medical condition or how the transfer might harm them. The Supreme Court’s stay is now actually undermining the stated goal of the statute by literally forcing Idaho’s hospitals to transfer patients across state lines, instead of providing the emergency care they need.
When they hear arguments in this case, the justices should therefore bear in mind one other piece of data: The patients affected by this decision are still receiving exactly the same number of abortions they received before the stay because, for patients presenting with their particular medical emergencies, termination remains the standard of care. The St. Luke’s data thus proves that abortion care will still happen—but it will happen following costly and time-wasting emergency transfers, helicopter rides, and bleeding and pain for women who are often already experiencing the very worst day of their lives. The St. Luke’s numbers reveal that denying abortion care doesn’t save fetal life or protect maternal health. It just makes emergency care more expensive, higher-risk, and brutally painful.
A few weeks back, we saw the Supreme Court’s justices take it upon themselves to second-guess the practice of medicine and drug regulation in the mifepristone case. The EMTALA case offers a repeat opportunity for justices to publicly practice emergency medicine without a license, a knowledge base, or any solicitude for actual physicians and their real-life patients. Allowing the Idaho abortion statute to go into effect was a consequential legal error that has already demonstrably harmed pregnant people and their families while impeding doctors from offering the kind of health care they have been trained to deliver. This suffering is entirely avoidable. The court has the power to rectify this error. Now the justices also have the data to understand what will happen should they opt not to do so.
