Broader panel will determine if ER physicians are protected from prosecution under state ban
The U.S. Ninth Circuit Court of Appeals has agreed to reconsider an appeals case that will determine whether emergency room physicians in Idaho will be shielded from prosecution under the state’s abortion ban for providing stabilizing care.
The order comes less than two weeks after a three-judge panel of the court granted an appeal from the Idaho Legislature to reverse a decision that prevented ER doctors from criminal penalties for providing an abortion as stabilizing care. That decision was made by U.S. District Judge B. Lynn Winmill in August 2022, after the U.S. Department of Justice sued the state of Idaho, arguing that its near-total ban on abortions violates the federal Emergency Medical Treatment and Labor Act, or EMTALA. 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 provide medical treatment that ensures a person’s condition won’t deteriorate in a significant way if they are transferred to another facility.
The initial complaint filed by the Department of Justice said Idaho’s abortion ban, which applies to any stage of pregnancy and contains an exception to save a pregnant patient’s life, put health providers in a position of risking criminal prosecution under the state law or loss of funding and other enforcement actions under EMTALA. Winmill, who was appointed by former President Bill Clinton, agreed with that argument and issued an injunction to block the law in those scenarios while the case proceeds.
With representation from a separate law firm, which public records show has cost the Idaho Legislature about $375,000 since the case began, legislative leaders appealed Winmill’s decision to the Ninth Circuit.
Out-of-state transfers may have been necessary under previous order
The Ninth Circuit contains four courthouses in California, Oregon and Washington, and is made up of 15 judges appointed by Democratic presidents and 13 appointed by Republican presidents. It is the country’s largest appellate court, representing nine Western states and two U.S. territories. The three judges who reversed Winmill’s decision at the end of September were appointed by former President Donald Trump.
Those judges said recent actions by the Idaho Legislature and other court rulings invalidated the initial arguments in the Justice Department’s complaint, and determined that the exception to prevent a pregnant person’s death was sufficient.
Following the appellate court’s initial ruling, senior counsel for one of Idaho’s largest health care systems told States Newsroom via email that any patient who came to a St. Luke’s emergency room or labor and delivery unit with an emergency would receive an exam to determine whether they have an emergency medical condition and stabilized. But to avoid committing a crime under Idaho law, if an abortion was a recommended method of treatment, it would only be performed if, based on the physician’s good faith medical judgment, termination was necessary to prevent the death of the pregnant patient. If termination was instead necessary to protect the pregnant patient’s health, the patient would potentially have to be transferred to an out-of-state hospital.
With the injunction back in place, ER physicians in Idaho are again protected while the case is pending.
The order, which was issued Tuesday, allows an “en banc” consideration of the case, meaning 10 of the court’s 28 active judges will be randomly selected to hear the case again, in addition to the chief judge, who will preside over the hearings.
It’s unclear when judges will be selected as members of the en banc case or when the next hearing will take place.
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Kelcie Moseley-Morris | Idaho Capital Sun
Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University. Prior to joining the Idaho Capital Sun, Moseley-Morris started her journalism career at the Moscow-Pullman Daily News, followed by the Lewiston Tribune and the Idaho Press.