By Ruth Brown and Logan Finney, Idaho Reports
The U.S. Supreme Court ruled Thursday that hospital physicians in Idaho can provide abortions to women in life-threatening emergency situations without fear of prosecution – for now, until the case is heard again.
Idaho state law bans nearly all abortions, with narrow exceptions for reported cases of rape or incest or to save the life of the mother. The law does not provide exceptions for abortions conducted to aid the mother’s health or fertility.
ONE FORMER LAWMAKER’S VIEW
One of the authors of Idaho’s anti-abortion laws told Idaho Reports Thursday that she has regrets about the ways Idaho law threatens physicians and limits protections for mothers.
Former Sen. Patti Anne Lodge served 11 terms, including as chair of the Senate State Affairs Committee, and helped craft some of the anti-abortion laws before the overturn of Roe vs Wade.
“There’s lots that, if I would have known and had more time to think about it and hadn’t been lobbied so hard, I’d change,” Lodge said. “I really thought about it, having had difficult pregnancies myself.”
Lodge is Catholic and said she still believes abortion should not be used for birth control.
“But I would never have charged doctors,” Lodge said. “I would never have allowed so many relatives to charge doctors.”
Doctors and medical professionals in Idaho could face two to five years for an abortion under the law if they are convicted of conducting a criminal abortion. Another law allows relatives of a fetus to seek civil damages after an abortion.
“I’ve had a lot of heartburn over charging doctors,” Lodge said. “That has really been heavy on my heart. The pressure… almost every hour I’d see a lobbyist on that (subject). I felt at the time really conflicted over my faith and my experiences having had difficult pregnancies.”
Lodge stressed that she preferred to see more options for women facing medical complications.
“If (legislators) are so concerned about their freedoms, why are they so concerned about taking other people’s freedoms?” Lodge asked.
“I think if you want freedom, then you better be looking at freedom all the way around, (including) the freedom to make medical decisions,” she said. “Who are we to judge situations like that?”
Lodge said she was happy with the Supreme Court’s decision that allows for now stabilizing care for mothers.
“I’m very happy it has come out like this,” she said. “There are medical situations that are heartbreaking that need to be an issue between a woman and her doctor.”
THE DECISION
The U.S. Department of Justice sued the state over its near-total abortion ban in August 2022, claiming the law violates the Emergency Medical Treatment and Labor Act, or EMTALA. That federal law mandates all hospitals that receive Medicare funds must provide necessary stabilizing treatment to a patient who arrives in an emergency room. The federal government claimed that in some cases, terminating a pregnancy is necessary to save a woman’s life.
“What falls in the gap between them are cases in which continuing a pregnancy does not put a woman’s life in danger, but still places her at risk of grave health consequences, including loss of fertility,” Justice Elena Kagan wrote. “In that situation, federal law requires a hospital to offer an abortion, whereas Idaho law prohibits that emergency care. And the record shows that, as a matter of medical reality, such cases exist.”
The 6-3 decision does not resolve the EMTALA case. It only sends it back to the federal appeals court for further litigation.
“The parties dispute whether EMTALA requires hospitals to provide abortions—or any other treatment forbidden by state law—as necessary stabilizing care,” wrote Justice Amy Coney Barrett. “They also disagree about whether EMTALA, as a statute enacted under Congress’s spending power and that operates on private parties, can preempt state law (an issue aired for the first time in this Court). In my judgment, it would be imprudent to answer these important questions now. Since this suit began in the District Court, Idaho law has significantly changed—twice.”
Justices Samuel Alito joined Justice Neil Gorsuch and Justice Clarence Thomas in dissent. There was no lead author in the opinion.
“The text of EMTALA shows clearly that it does not require hospitals to perform abortions in violation of Idaho law,” Alito wrote in his dissent. “To the contrary, EMTALA obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child.’”
Idaho U.S District Lynn Winmill in 2022 initially ruled that medical professionals cannot face prosecution if they conducted an emergency abortion for pregnant patients. The Legislature then successfully appealed Winmill’s decision to the Ninth Circuit Court of Appeals, which agreed with the state that EMTALA does not conflict with Idaho abortion law.
The U.S. Supreme Court in January lifted the stay on the law and agreed to hear the case at the request of Idaho Attorney General Raúl Labrador, allowing the state to enforce the ban in full. The court combined the challenges from the AG and the Legislature and heard oral arguments in April.
Labrador on Thursday told Idaho Reports he is disappointed with latest decision, but still optimistic about the state’s ability to enforce its abortion laws and the overall trajectory of the case.
“We agree with Alito that the case should have been decided, so of course we’re disappointed. However, if you read the opinion closely, what they’re saying is that the government made so many concessions in their briefing and in their oral argument that it doesn’t need to be expedited,” Labrador said. “The U.S. government was making these broad interpretations of EMTALA and was in essence trying to make any hospital an abortion mill. By the concessions that they made in court, they really narrowed the scope of their interpretation.”
The DOJ and Idaho physicians have said the state law isn’t clear and that it jeopardizes women’s lives and emergency department physicians. The Attorney General’s Office has repeatedly argued the current law does allow a physician to perform an abortion when a patient’s life is in danger.
“If you look at every single example that they used, we said, ‘Yeah we would allow an abortion in those cases,’” Labrador said. “That needs to be clear to the public. Our law is really broad. Our law says that if a doctor believes in good faith that the woman’s life is in jeopardy – and as the [Idaho] Supreme Court indicated, it doesn’t have to be immediate, it just has to be in jeopardy – they can terminate the pregnancy.”
An early draft of the decision was posted to the court’s website in error on Wednesday, as first reported by Bloomberg.
THE DEMOCRATIC CAUCUS
Idaho’s Democratic Caucus members held a press conference on Thursday afternoon after the Supreme Court’s decision.
“Today’s ruling gives us the tiniest sliver of temporary relief, but gives us no genuine solution to the crisis that Republican legislators have unleashed upon the women and doctors of Idaho,” said Senate Minority Leader Melissa Wintrow, D-Boise. “We are glad that, at least for now, women suffering catastrophic health emergencies will not have to be airlifted out of state. But we have to ask, why did our elected Republican leaders work so hard to make that nightmare a reality?”
House Minority Leader Ilana Rubel, D-Boise, also expressed disappointment in how little the decision does for the state.
“This miniscule window of temporary help we got today doesn’t come close to fixing the crisis created by Idaho’s total abortion ban,” Rubel said. “I fear my colleagues across the aisle will use this ruling as cover to once again punt on any legislative fix.”
During the 2024 legislative session, Republican leaders did not hear abortion legislation because they knew Supreme Court arguments were scheduled for April. Now, the case heads back to the Ninth Circuit, so Rubel is not hopeful that abortion legislation will be heard in 2025.
“I think they’re going to try to say, ‘oh, look, we have this narrow sliver of temporary emergency relief, so we don’t have to act,’” Rubel said. “They wouldn’t hear it before. If they wouldn’t hear any health exceptions while women were being airlifted nearly weekly, out of the state, they’re certainly not going to hear one now, particularly when the GOP platform just tripled down on saying there can be no health exception.”
Both Wintrow and Rubel said a potential ballot initiative could be a solution in the future for basic rights to abortion care on some level.
STAKEHOLDER REACTIONS
Planned Parenthood officials deemed the decision a temporary positive outcome.
“For now, we can take a collective sigh of relief for pregnant people in Idaho,” said Rebecca Gibron, CEO of the regional Planned Parenthood arm. “But the truth is that access to life-saving abortion care in an emergency should never have been in doubt. The fact that this right remains in legal limbo is outrageous and shameful. Protecting pregnant people in emergency situations is the bare minimum this court could do and yet they kicked the decision down to a lower court. Two years after the fall of Roe v. Wade, we are seeing just how serious the dangers are to patients’ lives and health without the right to abortion.”
The Idaho Medical Association also issued a statement Thursday. Dr. Megan Kasper, an OB/GYN practicing in Canyon County and chair of the association’s reproductive health subcommittee, said the decision to send the case back to the Ninth Circuit and reinstate EMTALA protections provides limited relief for doctors confronted with complicated pregnancies in certain emergency situations.
“We still need more clarity for our state’s doctors,” Kasper wrote. “Even with the Court reinstating EMTALA protections, Idaho’s restrictive abortion laws create confusion about whether necessary care is legal care. No Idaho woman should be forced to leave the state to get the care she needs.”
Kasper said Idaho’s restrictive laws are contributing to what she calls “maternity care deserts,” where there are not enough doctors, nurses and nearby facilities to meet women’s healthcare needs.
Susan B. Anthony Pro-Life America also issued a statement Thursday.
“Today’s Supreme Court decision is a setback, but our fight for babies and moms continues,” said State Policy Director Katie Daniel. “With its sound ‘life of the mother’ provision that allows pregnant women to receive emergency care, Idaho’s pro-life law is consistent with EMTALA which requires hospitals to provide stabilizing treatment to both mothers and unborn children. Under Attorney General Raul Labrador’s leadership, we are confident Idaho will eventually prevail on the merits of this case.”
Idaho Democratic Party Chair Lauren Necochea released the following statement in response to the U.S. Supreme Court decision.
“This ruling provides a temporary sliver of relief to patients facing dire medical emergencies and the doctors and nurses who desperately want to treat them without risking a prison sentence,” Necochea wrote. “It does not change that the Idaho Republican supermajority has completely yielded to the anti-abortion hardliners. Patients with a non-emergency health threat, patients with a nonviable pregnancy, rape victims who will almost always be unable to meet the paperwork requirements, and any woman who simply does not want to carry a pregnancy will have no options unless they have the means and time to travel out of state.”
Ruth Brown | Producer
Ruth Brown grew up in South Dakota and her first job out of college was covering the South Dakota Legislature. She’s since moved on to Idaho lawmakers. Brown spent 10 years working in print journalism, including newspapers such as the Idaho Statesman and Idaho Press, where she’s covered everything from the correctional system to health care issues. She joined Idaho Reports in 2021 and looks forward to telling stories about how state policy can impact the lives of regular Idahoans.
Logan Finney | Producer
Logan Finney is a North Idaho native with a passion for media production and boring government meetings. He grew up skiing, hunting and hiking in the mountains of Bonner County and has maintained a lifelong interest in the state’s geography, history and politics. Logan joined the Idaho Reports team in 2020 as a legislative session intern and stayed to cover the COVID-19 pandemic. He was hired as an associate producer in 2021 and they haven’t been able to get rid of him since.