Supreme Court’s Idaho decision deepens abortion uncertainty

The Supreme Court’s dismissal of Idaho’s challenge to a federal emergency care law is offering temporary relief to physicians and patients in the state, but it failed to close the door on whether federal law allows physicians to perform abortions in medical emergencies.

The justices on Thursday ruled 6-3 to dismiss the case as “improvidently granted,” essentially meaning they shouldn’t have taken it up to begin with. They sent it back to the appeals court and lifted an earlier decision that allowed Idaho’s law to stand unchallenged.  

This means doctors in Idaho will be able to perform emergency abortions despite state-level restrictions — at least while the case is making its way through the courts. Litigation will continue at the U.S. Court of Appeals for the 9th Circuit. 

But doctors and abortion rights advocates said the ruling is a short-term fix at best, and with no long-term clarity, patients with pregnancy complications who live in states that ban abortion remain in limbo. 

“The court should have provided the needed clarification to end the chaos and confusion about what EMTALA [the Emergency Medical Treatment and Labor Act] required once and for all, and the failure to do that could well result in more people being denied care,” Nancy Northup, president and CEO at the Center for Reproductive Rights, told reporters. 

The case centered on that act, a nearly 40 year-old law that requires federally funded hospitals to provide stabilizing care to emergency room patients no matter their ability to pay.  

The Biden administration had invoked EMTALA in the wake of the Supreme Court decision that overturned Roe v. Wade, saying state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the federal statute.     

But EMTALA doesn’t specifically mention abortion and doesn’t outline which procedures should be provided. Idaho argued state law supersedes the federal requirement. 

The state permits an abortion when “necessary to prevent the death of the pregnant woman,” but not if the patient’s health or reproductive future is at risk from a catastrophic health consequence, such as the loss of her uterus.  

Idaho Attorney General Raúl Labrador told reporters Thursday he was confident that the appeals court would rule in his favor. 

“We feel pretty strongly that we’re going to win this case in the end,” Labrador said. “We look forward to the Ninth Circuit actually reading the tea leaves from the Supreme Court and understanding that the Biden administration’s overreach needs to end.” 

Yet because the justices did not resolve the underlying questions raised by the case, and because states have been reluctant to provide substantial guidance to doctors about what constitutes a medical emergency, abortion care remains a legal gray area in dozens of states.   

“What we had really hoped for is the Supreme Court to come down very firmly that doctors should be able to provide care for patients, including in emergency situations where abortion care can often be needed to stabilize patients,” Nisha Verma, an OB/GYN in Georgia, said during a press conference.  

Georgia’s “heartbeat” law bans abortions after about six weeks and includes exceptions for medical emergencies and “medically futile” pregnancies. But what that means in practice varies across the state, and there is no standard definition or guidance. 

“I think that working here in Georgia, we are constantly in a state of confusion trying to navigate incredibly confusing laws with exceptions that just don’t make sense on the ground, that don’t take into consideration all of the complexity that we deal with every day,” Verma added. 

The Supreme Court may not end up waiting too much longer. An appeal from the federal government in a similar case to Idaho’s is already pending after the U.S. Court of Appeals for the 5th Circuit earlier this year ruled against the Biden administration regarding EMTALA in Texas. 

The Biden administration appealed to the Supreme Court but asked the justices to hold the petition until the court resolved the Idaho case. The court will likely make a decision about whether to hear arguments in the fall, allowing it to rule after the November election. 

The Supreme Court could also take up the Idaho case again, after the appeals court makes a decision. 

Labrador said he’s been having conversations with hospitals and doctors to try to clear up any confusion about how Idaho’s abortion ban applies.  

“They have been thinking … that they’re going to be prosecuted all the time, when that’s just not the case in any way,” he said. 

But some doctors in the state said they still feel vulnerable. 

“Attorney General Labrador chooses not to listen to the great majority of physicians who are deeply concerned, fearful. Fearing for the complications that our patients are suffering every day for care regarding abortion and across the reproductive health spectrum,” Caitlin Gustafson, an Idaho OB/GYN, told reporters. 

Jessica Evans-Wall, an Idaho emergency medicine physician, said she anticipates her hospital’s legal team may still need to get involved if there’s an instance with a pregnant patient where she or her physician partners are unsure. 

“If I was to run into a case where I was concerned about a pregnant patient’s health as opposed to her life, I would still be concerned that I was in gray area,” Evans-Wall said. “I think that in especially the emergency setting, we have to make decisions based on minimal information. I think that most of us physicians are still feeling a little bit unprotected.”