Abortion, EMTALA, and Federalism: Missed Opportunities in Idaho v. United States

In April 2024, the Supreme Court heard oral arguments in the case Idaho v. United States, which considered whether Idaho’s abortion ban violates the Emergency Medical Treatment and Labor Act (EMTALA). Implemented in the 1980s, EMTALA is a federal law that requires all Medicaid-participating hospitals to provide stabilizing care to patients in medical emergencies, regardless of income level, health insurance, nationality, and more [1]. However, Idaho’s ban only permits abortions if the mother’s life is at risk, which may overlook other non-threatening medical emergencies [2]. According to the doctrine of federal preemption, federal law supersedes state law when the two conflict, which may mean that EMTALA should preempt the Idaho statute [3]. Consequently, the Department of Justice sued Idaho over the ban, thereby preventing enforcement by imposing a preliminary injunction; Idaho then appealed to both the 9th Circuit and the Supreme Court to lift the injunction [4].

The judiciary ultimately dismissed the case on procedural grounds, stating that the certiorari had been “improvidently granted,” which means that the case should not have reached the Supreme Court in the first place [5]. Though this outcome leaves the lower court’s preliminary injunction intact, it effectively glosses over the core legal substance of the case. Notably, the decision was accompanied by a strongly worded dissent from Justice Ketanji Brown Jackson, who fiercely criticized the judiciary’s dismissal of the case. Ultimately, refusing to set a clear precedent for reproductive rights only exacerbates confusion for pregnant people and obstetricians living in states with abortion bans, which will increase barriers to reproductive healthcare.

The Supreme Court’s decision comes at a turbulent moment in the landscape of reproductive rights, particularly following the overturning of Roe v. Wade in 2022. Thanks to pre-existing trigger laws, many states have since outlawed abortion (with very limited exceptions) or imposed gestational limits [6]. In ten states, these new laws do not contain exceptions for rape or incest, while twelve do not have fatal anomaly exceptions [7].

The judiciary’s decision to overlook the substance of the case by dismissing it on procedural grounds is a disappointing decision for reproductive rights activists and physicians alike. Failing to clarify whether EMTALA preempts state abortion bans creates damaging ramifications for the future of federalism and state preemption; it effectively leaves the justiciability of abortion bans up to individual states, even if those abortions may be required to prevent organ failures or permanent physical disabilities. This controversy becomes a particularly salient issue in states with stringent bans, where EMTALA comes into play [8].

Firstly, the judiciary’s decision to dismiss the case on procedural grounds allows states to continue passing laws even if they do not meet EMTALA’s requirements. This ambiguity indirectly legitimizes draconian bans against abortion in states such as Arkansas, Oklahoma, Alabama, Texas, Indiana, Louisiana and more, and, at the very least, prolongs ongoing fights in courtrooms.

Secondly, in practice, differentiating between life-endangering and non-life-endangering medical conditions is much more difficult, particularly in time-crunched situations [9]. Although states with abortion bans point to “medical emergency” exceptions as sufficient carve-outs for emergency healthcare to continue, such laws are often insufficient and imprecisely worded. This dynamic can be seen in Idaho’s state legislature, which describes abortion as justified when it is “necessary to save the life of the mother when her life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself” [10]. Such statutes do not account for the specific instances of reproductive health emergencies, and testimonies from physicians reveal genuine confusion over what specific scenarios justify abortion under state laws. In other words, even abortion bans that include exceptions for the life of the mother create chilling effects that stop physicians from providing medical care to pregnant women even during emergencies. In such scenarios, the threat of criminal prosecution compounds the pressure on physicians to justify abortions, increasing pregnant individuals’ health risks. That pregnant people in Idaho had to be airlifted out of the state every week after the implementation of a ban demonstrates this unfortunate dynamic; the sheer presence of legal uncertainty is enough to prevent doctors from providing care [11].

To demonstrate how such laws play out in hospital rooms, one can draw on testimonies from doctors in states with abortion bans. Following the implementation of strict abortion bans in Idaho, doctors faced serious deliberation over whether kidney failure, risks of hemorrhage, closed fallopian tubes, and threats to fertility qualify as life-endangering medical conditions, all of which pose serious medical threats to pregnant women looking to receive abortions [12]. For many doctors at risk of criminal prosecution or hefty fines, this legal ambiguity strongly disincentivizes them from performing abortions even during clear medical emergencies. For example, in Oklahoma in 2023, a woman experiencing a partial molar pregnancy discovered she was at risk of cancer and experienced debilitating nausea for weeks; however, the Oklahoma Children’s Hospital refused to perform an abortion and instead asked her to wait in the parking lot in case she deteriorated further [13]. While she experienced potentially life-changing medical conditions, her life was arguably not directly at risk; she was thus denied care. Similar cases have been reported with hospitals refusing to offer care until a pregnant woman went into sepsis, which clearly put her body at risk of further deterioration. The Supreme Court’s silence on this case means that such ambivalence on emergency care will continue.

Furthermore, the Supreme Court’s inconclusive decision prolongs the legal calamity surrounding the circumstances of justified abortion, which contributes to doctor shortages within states with stricter abortion bans. Arizona and North Carolina are already experiencing shortages of obstetrician-gynecologists; existing practitioners leave for other states, while medical students are disincentivized from pursuing careers in gynecology [14]. In Idaho, one in four OB-GYNS have either moved out of state or retired [15]. One could argue that this outcome is inevitable given the increasing number of abortion restrictions within the country; however, the lack of legal uniformity in giving life-saving care surely plays a large role in facilitating this OB-GYN shortage.

Without providing a clear resolution on preemption, the Supreme Court has failed to provide clear guidance on the future of EMTALA in relation to abortion bans, making future legal battles and confusion inevitable. In the meantime, many pregnant women experiencing fetal anomalies and life-changing medical conditions will continue to find themselves in nightmarish situations, without the prospects of emergency reproductive care.

Bibliography

[1] Joseph Zibulewsky, “The Emergency Medical Treatment and Active Labor Act (Emtala): What It Is and What It Means for Physicians,” Baylor University Medical Center Proceedings 14, no. 4 (October 2001): 339–46, https://doi.org/10.1080/08998280.2001.11927785.

[2] “Section 18-613 – Idaho State Legislature,” accessed October 6, 2024, https://legislature.idaho.gov/statutesrules/idstat/title18/t18ch6/sect18-613/.

[3] “Preemption,” LII / Legal Information Institute, accessed October 30, 2024, https://www.law.cornell.edu/wex/preemption.

[4] “Supreme Court Allows Emergency Abortions, for Now, in Idaho,” SCOTUSblog, June 27, 2024, https://www.scotusblog.com/2024/06/supreme-court-allows-emergency-abortions-for-now-in-idaho/.

[5] Ibid.

[6] Allison McCann and Amy Schoenfeld Walker, “Tracking Abortion Bans Across the Country,” The New York Times, May 24, 2022, sec. U.S., https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wade.html.

[7] Ibid.

[8] McCann, Walker, “Tracking Abortion Bans.”

[9] Rachel N. Reeder, “EMTALA Preemption of State Laws Restricting Emergency Abortions,” Saint Louis University Journal of Health Law & Policy (2023). https://heinonline.org/HOL/LandingPage?handle=hein.journals/sljhlp17&div=18&id=&page=

[10] “Section 18-613 – Idaho State Legislature,” accessed October 6, 2024, https://legislature.idaho.gov/statutesrules/idstat/title18/t18ch6/sect18-613/.

[11] Michele Heisler, Nia Mitchell, Whitney Arey, Michelle Erenberg, Karla Torres, and Payal K. Shah, “US Abortion Bans Should Not Pre-Empt the Duty to Provide Life-Saving Abortion Care to Pregnant Patients in Medical Emergencies,” The Lancet (2024), https://doi.org/10.1016/S0140-6736(24)00551-8.

[12] Sarah Zhang, “‘That’s Something That You Won’t Recover From as a Doctor,’” The Atlantic, September 12, 2024, https://www.theatlantic.com/magazine/archive/2024/10/abortion-ban-idaho-ob-gyn-maternity-care/679567/.

[13] Selena Simmons-Duffin, “‘I’ll Lose My Family.’ A Husband’s Dread during an Abortion Ordeal in Oklahoma,” NPR, May 1, 2023, sec. Days & Weeks, https://www.npr.org/sections/health-shots/2023/05/01/1172973274/oklahoma-abortion-ban-exception-life-of-mother-molar-pregnancy.

[14] Ibid.

[15] Elissa Nadworny, “Abortion Bans Still Leave a ‘Gray Area’ for Doctors after Idaho Supreme Court Case,” NPR, June 28, 2024, sec. Shots - Health News, https://www.npr.org/sections/shots-health-news/2024/06/28/nx-s1-5021863/idaho-abortion-emergency-supreme-court-case-reaction.