Mistakenly posted Supreme Court document indicates pregnant people in Idaho should have access to emergency care – for now
The posting was first reported by Bloomberg News. It’s unclear whether it’s the final version that the court will issue in the coming days.
“Today’s decision is not a victory for pregnant patients in Idaho,” Justice Ketanji Brown Jackson wrote in a separate opinion Wednesday, according to Bloomberg. “It is a delay.”
Because Idaho’s strict ban does not allow a doctor to perform an abortion if the patient’s health is in danger from the pregnancy itself in most circumstances, the Biden administration argues, the law violates the federal Emergency Medical Treatment and Active Labor Act, also known as EMTALA.
EMTALA requires all US hospitals that have received Medicare money — essentially nearly all of them — to screen everyone who comes into their emergency rooms to determine whether the person has an emergency medical condition without regard for their ability to pay for those services.
The 1986 law requires hospitals, to the best of their ability, to stabilize anyone with an emergency medical condition or to transfer them to another facility that has that capacity. The hospitals must also treat these patients “until the emergency medical condition is resolved or stabilized.”
Pregnant people were singled out in the law in 1989, after reports that some hospitals were refusing to care for uninsured women in labor. Congress expanded EMTALA to specify how it included people who were pregnant and having contractions.
In 2021, the Biden administration released the Reinforcement of EMTALA Obligation, which says a doctor’s duty to provide stabilizing treatment “preempts any directly conflicting state law or mandated that might otherwise prohibit or prevent such treatment,” although it did not specify whether an abortion has to be provided.
In July 2022, the Biden administration’s guidance clarified that EMTALA includes the need to perform stabilization abortion care if it is medically necessary to treat an emergency medical condition.
A Supreme Court document like the one accidentally posted Wednesday means a hospital must provide an abortion if it’s medically indicated in an emergency situation, even in states that have abortion bans or restrictions that don’t provide an exception to protect the health of the mother – at least as the case makes it way through the courts.
But the move would only delay the issue, says Molly Meegan, chief legal officer for the American College of Obstetricians and Gynecologists (ACOG), a professional organization that represents the majority of practitioners in the United States.
“It doesn’t solve the problem at all. In fact, pregnant patients are still trying to obtain care and unable to get it, and physicians are trying to provide care without clear parameters and with draconian criminal penalties hanging over their heads if they get the question wrong,” she said.
Idaho’s abortion law had an immediate effect on hospitals in the state. On January 5, the Supreme Court lifted an injunction so Idaho no longer had EMTALA protections for pregnancy complications. In April, St. Luke’s, the state’s largest provider of emergency services, said it had had to send six pregnant patients from its emergency department out of state via air transport to protect their health.
The year before, when the injunction was in effect, the hospital had to do this only once, according to details in Wednesday’s Supreme Court document.
Meegan said the law hasn’t just hurt patient care. Physicians have told the group that they are leaving the state because they don’t feel that they can practice medicine in a way that’s consistent with their ethical obligations, training and judgment.
“It’s an untenable situation,” Meegan said.
Dr. Kara Cadwallader, a doctor who works in Idaho and is a member of the Idaho Coalition for Safe Healthcare, said that even last week, her hospital had to send a pregnant person out of state for care even though they typically could have treated her. She is “very excited” about Wednesday’s ruling, even if it is a “small step.”
“Beyond all the political reasons, it’s incredibly important for pregnant patients here in Idaho, who now will be able to access emergency care appropriately,” Cadwallader said.
Dr. Julie Lyons, a family medicine physician at St. Luke’s, told CNN earlier this year that the Idaho abortion law is so restrictive that she makes sure to talk to patients – even at their first prenatal appointment – about what they will need to do if they have an emergency.
“We, more than ever, are having that discussion - like, if you need to go out of state, you need to check with your insurance, you need to make sure you buy life flight insurance,” Lyons said in February.
“Many of my patients are scared to be pregnant in Idaho. It’s really tragic,” she added.
Any decision on EMTALA does not just affect Idaho, said Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, a privately owned health care company that provides abortion care.
Forty-one states have abortion bans in effect with only limited exceptions, and 14 states have total bans. Abortion can be a necessary part of health care, Hagstrom Miller said, but with the high court’s move to overturn Roe v. Wade, doctors are confused about what they are allowed to do.
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“Abortion saves lives. Abortion is absolutely necessary, oftentimes in emergency room settings to protect the health of the pregnant person,” Hagstrom Miller said. “I think providers really understand that their hands have been tied post-Roe here, since the Dobbs decision, in numerous states and numerous parts of the country.
“So this isn’t only about Idaho. This is really something that all eyes and ears are watching from multiple states across the country to try to figure out what we’re able to do to provide basic health care, even if abortion has been restricted.”
Law professor Elizabeth Sepper, of the University of Texas at Austin School of Law, said that “in every other state with an abortion ban, confusion will continue to reign.”
“Even where states have ‘health’ exceptions in their laws, they typically are narrower than what EMTALA requires,” Sepper wrote in an email.
Alexa Kolbi-Molinas, deputy director of the ACLU’s Reproductive Freedom Project, said she sees Idaho as a “very cruel case study” of what happens when the law strips pregnant people of their right to emergency abortion care. She said she’s disappointed in Wednesday’s ruling because the court had the opportunity to uphold a law that gives everyone access to care but failed to do so.
“The right to emergency care is perhaps one of the most basic rights there is,” Kolbi-Molinas said. “We were fighting for scraps in this case, and even with that, a majority of the Supreme Court was not willing to recognize the humanity of pregnant people, that they would be entitled to this basic right to emergency care.”
CNN’s Meg Tirrell, Carma Hassan, Jamie Gumbrecht and John Bonifield contributed to this report.
The Biden administration argues that Idaho's abortion law violates the Federal Emergency Medical Treatment and Active Labor Act (EMTALA) because the law does not allow a doctor to perform an abortion if a patient's health is in danger from the pregnancy itself in most circumstances. Pregnant people were singled out in the law in 1989, after reports that some hospitals were refusing to care for uninsured women in labor.
The Supreme Court document accidentally posted on Wednesday indicates that a hospital must provide an abortion if it's medically indicated in an emergency situation, even in states with abortion bans or restrictions that do not provide an exception to protect the health of the mother – at least as the case makes its way through the courts. However, pregnant patients are still struggling to obtain care and unable to get it, and physicians are trying to provide care without clear parameters and with draconian criminal penalties hanging over their heads if they make a mistake.
