U.S. Supreme Court agrees to hear Idaho case on emergency room abortions

The U.S. Supreme Court will consider a case in Idaho regarding protections for emergency room physicians who may have to perform an abortion as stabilizing care. And, in the process, the court lifted an injunction that protected those doctors from prosecution in the state, which has a near-total ban on abortions.

Without the injunction, ER doctors are now subject to the full extent of Idaho’s abortion ban, which carries penalties of jail time, fines and the loss of a medical license. Those doctors are also subject to Idaho’s civil law that allows immediate and extended family members to sue for up to $20,000 over an abortion procedure.

It’s the second time ER doctors in Idaho have lost the protection since the order first went into place in August 2022, when U.S. District Judge B. Lynn Winmill agreed with the U.S. Department of Justice that Idaho’s near-total ban on abortions violated the federal Emergency Medical Treatment and Labor Act, or EMTALA.

In the absence of that protection, Idaho’s hospitals will transfer more patients out of state for abortion care in instances such as when a patient’s water breaks prematurely, and infection could quickly set in. Rather than waiting for it to become a life-threatening emergency, doctors have said, they send the patient to a hospital in a state like Utah, which has an exception to preserve a patient’s health, not just to save their life.

A medical system that accepts Medicare funding is required to provide stabilizing care to patients who come to the emergency room regardless of their ability to pay, including pregnant patients. To stabilize, according to the law, means to ensure a person’s condition won’t deteriorate in a significant way if they are transferred to another facility.

Idaho’s abortion ban applies to any stage of pregnancy and contains an exception only to save a pregnant patient’s life, and the government has argued health providers would be put in a position of risking criminal prosecution under the state law or loss of funding and other enforcement actions for violating EMTALA.

In late September, a three-judge panel from the 9th Circuit Court of Appeals struck down the order, which only held for about two weeks before it went back into place when the rest of the appellate judges decided to hear the case “en banc,” meaning a random selection of judges would hear the case again and issue another ruling. That hearing was scheduled to take place Jan. 23, but no longer will now that the Supreme Court has taken it on.

The court’s announcement comes a few days after the 5th Circuit Court of Appeals determined that ER physicians in Texas were not required to perform emergency abortion care under EMTALA.

The Alliance Defending Freedom announced it had filed an emergency application for a stay pending appeal with the high court in November on behalf of Idaho Attorney General Raúl Labrador’s office. Alliance Defending Freedom is a religious conservative group that recruits and trains attorneys to litigate cultural issue cases, including abortion, anti-LGBTQ legislation and what they consider violations of Christian religious freedom.

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In the motion filed in November, Alliance Defending Freedom attorneys argued that because the 9th Circuit did not provide a reason for reconsidering the case, that alone justified intervention by the U.S. Supreme Court. They also said EMTALA is only meant to ensure that patients are not denied treatments otherwise allowed because of an inability to pay.

“Just as EMTALA does not require emergency rooms to provide psychiatric services where they are unavailable … it does not require emergency rooms to provide treatments that are unavailable because state law forbids them,” the motion said. “And if emergency rooms need not staff up with psychiatrists, they certainly do not have to staff up with abortionists. The federal government cannot use EMTALA to override in the emergency room state laws about abortion any more than it can use it to override state law on organ transplants or marijuana use.”