The U.S. Supreme Court’s decision to consider the legality of Idaho’s abortion law — and to reinstate its highly restrictive ban in the meantime — is expected to galvanize a push for similar measures in other states, even before the court issues a ruling later this year.
As state legislatures across the country begin their 2024 sessions, advocates on both sides of the abortion debate said they anticipate ongoing efforts to narrow when emergency abortions can be performed if the mother’s life is in danger.
Last week, the Supreme Court agreed to Idaho officials’ request that it consider overturning a lower court’s ruling that had blocked enforcement of the state law. The Biden administration had sued the state, arguing that Idaho’s statute — permitting abortion only to prevent the death of the mother — violates the standards of the federal Emergency Medical Treatment and Labor Act (EMTALA). The latter requires physicians to provide stabilizing treatment in emergency rooms, which could include abortion, if they “reasonably expect” impairment or dysfunction, or “serious jeopardy to the patient’s health.”
Idaho officials maintain that exceptions to protect the life of the mother are sufficiently established in the state’s abortion law, and it therefore complies with EMTALA’s requirements.
Carol Tobias, president of the National Right to Life Committee, said she expected other states to examine their laws, and whether EMTALA is affecting abortion policies in hospitals. “They don’t want their emergency rooms to be turned into abortion clinics,” she said. “EMTALA is effective in every state. If states do have laws protecting unborn children, they may look at whether they need to make changes.”
Alexa Kolbi-Molinas, deputy director of the Reproductive Freedom Project of the ACLU, said politicians from Idaho and Texas have already asked courts “to allow them to throw doctors in jail for providing emergency abortions. And unless and until the Supreme Court makes clear that EMTALA doesn’t have an abortion carve out, then I think we could see extremist politicians in other states attempting to do the same thing.”
The Idaho case highlights ongoing confusion over what constitutes a medical emergency and legally permissible abortion in many of the states that restricted access after the Supreme Court’s 2022 Dobbs decision that overturned Roe v. Wade. Physicians say it can be unclear whether serious pregnancy complications meet exemptions in state abortion laws for life-threatening or other emergency conditions, and they’re wary of losing their medical license, heavy fines, or prison time.
One example is a condition called preterm premature rupture of membranes (PPROM), which means that the pregnancy is not viable and, if left untreated, can cause sepsis, hemorrhaging, and kidney failure, all of which carry a risk of death for the mother. Yet physicians faced with potential criminal prosecution in Texas have reported feeling unable to provide abortions in such circumstances. Lawsuits in Idaho, Tennessee, Oklahoma, and Texas have highlighted cases where women were facing serious health consequences but had to leave the state to get care.
Tobias said she believes these cases were “tough” but “partly being blown out of proportion.” She added she’s talked with physicians who’ve said they consider both mother and fetus as patients, and have long worked to save both. She wasn’t sure, she said, why doing so has become “this big problem” in the past year. “The desire to overturn a pro-life law is making some people use women as examples when another doctor or hospital would be able to handle the situation,” said Tobias.
While the Idaho case is going to the Supreme Court, a federal appeals court ruled last week that the Texas abortion law, which includes an exemption when there is a “serious risk of substantial impairment of a major bodily function,” does not violate EMTALA.
John Seago, president of Texas Right to Life, said there was no EMTALA conflict because state exemptions for medical emergencies were sufficient. “The reality is Idaho law and Texas law have adequate positions on these topics,” he said. Physicians who know a patient is at risk of sepsis but fail to act sooner are not acting according to the law, he added. “Our law does not have any reference to time. [The threat] does not have to be imminent, it can be a foreseeable threat.”
But Rabia Muqaddam, senior staff attorney at the Center for Reproductive Rights, said the idea that physicians were misreading the Texas law was “absurd.” She pointed to a legal challenge in December, when a Texas lower court permitted an abortion on medical grounds, but state Attorney General Ken Paxton warned the decision — which was later overturned — would not protect physicians from “civil and criminal liability.”
“These restrictions are written with unmedical and frankly unhinged language,” she said. “We have physicians saying we want to help these patients but our hands are tied because we don’t know how to make decisions and the state has made threats.”
Discussion over the Supreme Court case will only add to confusion, said Maggie Olivia, senior policy manager at Abortion Action Missouri. The hearing itself, scheduled for April, “will have dire consequences,” as the discussion alone instills both confusion and fear among patients and physicians, she said.
Missouri was one of the states where the first federal investigation found hospitals’ failure to provide an abortion had violated EMTALA. Mylissa Farmer was told that her fetus would not survive and she was at risk of infection or losing her uterus, but was denied care at hospitals in both Missouri and Kansas. “Exemptions often exist in name only,” added Olivia. “We know in practice they don’t work.”
Depending on how the Supreme Court rules, it could trigger another wave of legislation at mid-year. “A decision narrowing EMTALA is going to have a similarly empowering effect for those who are the most radical when it comes to restricting abortions,” said Muqaddam, whose legal advocacy group has filed several state legal challenges on behalf of women denied abortions they sought on medical grounds. Anti-abortion legislators are pushing more restrictive policies across the U.S., she said, with lawmakers in some states with six-week bans pushing total bans, and some discussion of criminalizing pregnant people who have abortions. “There’s no getting around it, we’re really frightened,” she added.
Gracie Skogman, legislative director of Wisconsin Right to Life, said she does not expect the state Supreme Court to uphold that state’s anti-abortion law, which was created in 1849 and in force from June 2022 until September 2023. The measure is worded differently than Idaho’s, but similarly bans abortions unless they’re performed to save a pregnant person’s life. Skogman is encouraged by the U.S. Supreme Court’s decision to review whether Idaho’s law conflicts with EMTALA, she said, and is involved in ongoing Wisconsin legislative discussions over what constitutes a medical emergency.
As for whether Wisconsin’s law, if rejected by the state Supreme Court, could eventually reach the U.S. Supreme Court?
“I don’t think we can rule out any possibilities,” she said.
This story is part of ongoing coverage of reproductive health care supported by a grant from the Commonwealth Fund.