Idaho’s abortion ban and emergency care fight returns to federal court Tuesday
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Abortion rights advocates and anti-abortion opponents clash outside the US Supreme Court on April 24 in Washington, DC. Andrew Harnik/Getty Images
The challenge of Idaho’s strict abortion ban and emergency care that reached the Supreme Court this year will be back in a federal appeals court on Tuesday ahead of another possible trip to the high court.
The 9th US Circuit Court of Appeals will hear arguments on the Biden administration’s claims that federally funded hospitals are obligated to provide abortions when pregnancy complications are jeopardizing a woman’s life or her health, even in states that prohibit the procedure.
Idaho’s abortion ban – which was partially blocked and reinstated multiple times over the course of the litigation – has an exemption for when a woman’s life is at risk, but not for when her health is imperiled in a way that stops short of being life-threatening.
The dispute over abortion access in medical emergencies could outlive the administration that brought it. Even if the incoming Trump administration no longer supports the lawsuit, it’s possible that the justices will have to consider the matter again, after punting on the issue in June.
The Biden administration is pointing to a 1986 law, the Emergency Medical Treatment and Active Labor Act, or EMTALA, which requires hospitals that accept Medicare to treat patients in medical emergencies regardless of their ability to pay for services.
Idaho counters that the Justice Department is overreaching in its claims that the law could require the provision of abortion, with the state pointing specifically to the law’s references to “unborn child” when an emergency patient is pregnant.
“I don’t think Congress, when they enacted EMTALA, or President Reagan when he signed it into law, anticipated an interpretation that required the child’s life to be taken,” said John Bursch, a senior counsel for the conservative legal advocacy group Alliance Defending Freedom, which is representing Idaho in the case.
The Supreme Court took up the case in January when it was at a preliminary phase, reviving the full law at the time, only to decide after hearing arguments months later that it had granted the case prematurely. The high court in a 6-3 June decision restored an order pausing the ban in medical emergencies while the litigation played out back in lower courts. Medical providers said in court filings that they were forced to airlift women out of state to receive emergency abortions in the six months that the Supreme Court allowed the Idaho ban to be fully enforced.
“What is more clear now more than ever before is that the stakes in this case could not be higher,” said Alexa Kolbi-Molinas, the deputy director of the Reproductive Freedom Project of the ACLU, which is supporting the Biden administration in the case.
If Trump DOJ drops lawsuit, others can try to keep it alive
It’s not clear when the 9th Circuit – where Democratic appointees outnumber Republican appointees by a small margin – will issue its ruling. But if it rules against Idaho, that will create a so-called circuit split that will make it more likely the Supreme Court will grant the case for review again.
In a separate dispute concerning emergency room abortion care, the conservative 5th US Circuit Court of Appeals ruled against the Biden administration, finding that EMTALA did not require hospitals to offer abortions in states that banned them.
It’s possible that in the Idaho case, the President-elect Donald Trump’s Justice Department will opt to drop the lawsuit, and anti-abortion groups are advocating that his administration do so. However, an outside party – such as patients in Idaho or medical providers affected by the abortion ban – can seek to intervene to keep the lawsuit alive.
St. Luke’s, the state’s largest not-for-profit health system, has secured permission to argue Tuesday as a friend of the court. (Its lawyer declined CNN’s request for comment.)
In a brief, it argued the ban’s life-of-the-mother exemption is not enough to assure doctors they can provide abortions in medical emergencies without fear of prosecution, warning of concerns that a prosecutor could “second guess physicians’ ‘good faith medical judgments’ that an abortion was necessary to prevent the death of a pregnant patient.”
“Because a physician administering an emergency termination in Idaho would be risking their professional license, livelihood, personal security, and freedom, it is only natural that physicians may hesitate and seek assurance, to the extent possible, before proceeding,” St. Luke’s said. “In the meantime, their patients may suffer, and their conditions may deteriorate, perhaps materially.”
A ‘roadmap’ for Idaho
When the case was previously before the Supreme Court, several justices signed on to dissents and concurrences that gave insight into how they were thinking about the case.
The parties have picked up on those cues in their latest round of appellate briefs, emphasizing points made by justices that support their positions. For Idaho, that’s meant expanding upon arguments the state made about the significance of the term “unborn child” in the law, which was a focus of a dissent written by Justice Samuel Alito and joined by Justices Clarence Thomas and Neil Gorsuch.
Bursch described Alito as leaning into Idaho’s arguments about “how the unborn child is a separate patient that EMTALA requires to be stabilized.”
The Justice Department, in a point adopted by some of the liberal justices when they wrote about the case this summer, counters that Congress added the language to the federal law to ensure emergency rooms treated patients who faced no risks to their own health but whose pregnancies were in danger. The Justice Department declined CNN’s request for comment.
“Alito, Thomas and Gorsuch essentially provided a roadmap to just how they would strip pregnant women of” their right to stabilizing emergency care, said Kolbi-Molinas. “Idaho is doing its best to follow it.”
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