By Ruth Brown, Idaho Reports 

The U.S. Supreme Court heard arguments Wednesday in a lawsuit between the U.S. Department of Justice and the state over Idaho’s abortion laws debating the current legality of stabilizing women in need of emergent care. 

The DOJ sued the state in 2022 after Idaho’s abortion ban went into place, following the overturning of Roe v Wade, saying the strict regulation could put the life of a mother in danger. The DOJ cited the Emergency Medical Treatment and Labor Act, or EMTALA, which is a federal law requiring hospitals that accept federal funds to treat all patients, regardless of their ability to pay. The law mandates a hospital must stabilize a patient at an emergency room. In its lawsuit, the DOJ argues in some cases, terminating a pregnancy may be necessary to stabilize a patient, even if her life isn’t immediately in danger. Under the Supremacy Clause, a federal law preempts state law. 

Idaho’s Attorney General’s Office argues that the Idaho law does allow a physician to perform an abortion when a patient’s life is in danger. Idaho’s law, however, does not include exceptions for terminating a pregnancy when the woman’s health is in danger. The only exceptions to Idaho law include life of the mother, reported rape and incest, or if a pregnancy is an ectopic pregnancy or a molar pregnancy – neither of which would be viable pregnancies to carry to birth. 

The law also states “No abortion shall be deemed necessary to prevent the death of the pregnant woman because the physician believes that the woman may or will take action to harm herself.” 

Josh Turner, chief of constitutional litigation and policy with the Attorney General’s Office, argued to the justices that physicians won’t face prosecution if they perform an abortion in good faith during an emergency situation. 

But some justices appeared skeptical of Turner’s arguments. Justice Sonia Sotomayor pressed Turner with examples of conditions in which a woman may need her pregnancy terminated for emergency needs that aren’t immediately fatal.  

“Again, it goes back to whether the doctor can in good faith medical judgement,” Turner said.  

“That’s a lot for the doctor to risk,” Sotomayer cut him off. 

“It is very case-by-case,” Turner said.  

“That’s the problem,” Sotomayer responded, saying local prosecutors could dispute the physician’s judgment and decide to pursue charges.  

Turner also pointed out that the law has no imminency clause, meaning a patient doesn’t have to be close to death for the good faith medical judgement to provide protection.  

Justice Amy Coney Barrett focused on the law’s lack of a mental health exemption and the lack of examples offered where the law became problematic. 

“I guess I don’t really understand why we have to address the stabilizing condition if what you say is nobody has been able to identify the conflict,” Barrett said. “And in the mental health thing … Idaho badly errs in asserting that construing EMTALA according to its term would turn emergency rooms into federal abortion enclaves by allowing abortions for mental health concerns.” 

Elizabeth Prelogar, solicitor general for the U.S. Department of Justice, responded to a question about the mental health concern in her response. 

“This is not about mental health, generally,” said Prelogar.  “(In that situation) she might not be in a position to give any informed consent anyway.” 

The DOJ’s responses list a variety of cases in which a woman’s life could be seriously jeopardized and a hospital emergency department — which does not perform voluntary abortions – might consider terminating a pregnancy to save the health or life of the mother. Those include preeclampsia, which could cause seizures and stroke in the mother, or a premature rupture of the amniotic sac, which could cause sepsis and uncontrollable hemorrhaging in the mother, as well as many other examples of pregnancy-related complications. 

Justice Samuel A. Alito questioned Prelogar about the that fact that EMTALA includes language about the hospital’s responsibility to protect the unborn child, as well as a mother. 

“In a situation where her own life and health is gravely endangered, then in that situation EMTALA is clear, the hospital has to offer her treatment,” Prelogar said. “She doesn’t have to accept it. These are tragic circumstances.” Prelogar also said when a fetus is viable later on in the pregnancy, the standard of care is to delivery the baby, not perform an abortion.  

Alito said he wasn’t arguing that the woman, herself, doesn’t deserve stabilization.  

Other justices asked Prelogar about Congress’s authority to spend money with direction and offer oversight over the practice of medicine.  

Prelogar said providers have always understood their obligations under EMTALA. 

“In Idaho, doctors have to shut their eyes to everything except death,” she said. “Whereas under EMTALA, you’re supposed to be thinking about things like is she about to lose her fertility? Is her uterus going to be incredibly scarred because of the bleeding? Is she about to undergo the possibility of kidney failure?” 

Without action from the court, Idaho physicians fear terminating a pregnancy could result in prison time, loss of a medical license, and civil litigation, per Idaho law. The Idaho Legislature took no action to clarify the law in its 2024 session. Rep. Brent Crane, R-Nampa, is Chairman of the House State Affairs Committee and previously told Idaho Reports they strategically wanted to wait to see what the U.S. Supreme Court decides on this issue before considering any changes to Idaho’s abortion ban. 

The Ninth Circuit Court of Appeals sided in September with the Idaho Legislature before it came to the U.S. Supreme Court. 

The justices will issue a written opinion later. 

 

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