Idaho must provide emergency abortions after Supreme Court declines to rule on case

Idaho hospitals are once again required to provide abortions in a medical emergency despite the state’s near-total ban on the procedure, following a Supreme Court decision Thursday that punted the case to lower courts for further consideration.

A majority of justices said the court erred when it decided in January to take the case, sidestepping the merits of the arguments, which focused on the conflict between Idaho’s near total abortion ban and federal protections for patients in crisis.

The decision — which the court inadvertently published and quickly deleted on Wednesday — is the Supreme Court’s first to focus on an individual state’s abortion ban since the fall of Roe v. Wade two years ago. The Biden administration had sued Idaho for violating the Emergency Medical Treatment and Labor Act, known as EMTALA, which requires hospitals that take Medicare to provide stabilizing treatment when there’s an imminent threat to a patient’s life or health.

During oral arguments this spring, multiple justices said they were concerned by reports from Idaho of a surge in patients being airlifted to neighboring states while experiencing pregnancy complications because doctors feared treating them would draw criminal charges. But a 5-4 majority ultimately decided that they intervened in a “still evolving” case prematurely and should allow the 9th U.S. Circuit Court of Appeals to hash out the arguments first.

Four justices dissented, arguing that the court should have resolved the case now. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch indicated they would have ruled for Idaho, with Alito scolding his colleagues for having “simply lost the will to decide the easy but emotional and highly politicized question.”

Alito rejected the Biden administration’s argument that EMTALA requires hospitals to provide emergency abortions when that is the stabilizing care a patient needs, saying the Reagan-era law doesn’t mention abortion but does require doctors to protect an “unborn child” from harm.

Justice Ketanji Brown Jackson, who read some of her opinion from the bench Thursday morning, also argued that punting the case is "problematic" and the court should have resolved it — in favor of the Biden administration. As she spoke, Justice Clarence Thomas rolled his eyes and closed them, placing his hand on the side of his face. The other justices appeared to listen attentively.

“Storm clouds loom ahead,” Jackson argued. “Three Justices suggest, at least in this context, that States have free rein to nullify federal law.”

No justice made any comment on, or allusion to, the premature release of the opinion on the court’s website Wednesday.

In kicking the case to lower courts, as the Supreme Court also did with the other major abortion case of this term, the justices avoided issuing major rulings that could have upended the upcoming presidential and congressional elections. But they left the door open to revisiting both emergency abortion access and abortion pill regulation as early as next year.

And while leaving a lower court ruling in place will restore the right to an emergency abortion in Idaho, the court is also leaving untouched a 5th U.S. Circuit Court of Appeals ruling in January that EMTALA does not require doctors in Texas to offer abortions when a patient’s life or health is in jeopardy.

“While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires,” Jackson warned.

Medical experts agreed that while the ruling may give doctors some confidence to provide abortions when there’s a clear threat to a patient’s life or health, the uncertainty in states with abortion bans is likely to continue .

Boise-based obstetrician and gynecologist Emily Corrigan, a plaintiff in a separate lawsuit seeking to expand Idaho’s narrow exceptions for abortions in medical emergencies, told POLITICO that she and her colleagues not only feel trapped between conflicting state and federal laws, but also between their ethical and medical training and the fear of prosecution under the state’s ban.

Corrigan said there have been times when she knew she could reduce the risk to the life and health of a patient by performing an abortion, “but then you have to sit there and think, ‘Are they going to come after me for this?’”

The 9th Circuit is expected to consider the merits of the case, including the Biden administration’s interpretation of what EMTALA requires, its power to enforce it in states with abortion bans and whether the narrow “life of the mother” exception to Idaho’s abortion ban adequate protects patients in crisis.

The Biden administration will continue to argue that “anyone in America who … needs to go to an emergency room, should be able to go to an emergency room — whether the care that a medical professional says you need to stabilize your health or to save your life is an abortion or not,” HHS Secretary Xavier Becerra said at an event Wednesday in Boise, Idaho.

Idaho Attorney General Raúl Labrador told reporters after the decision that he will continue to assert that there is no conflict between EMTALA and the state's abortion ban, which Thursday's decision left "almost entirely intact."

As long as doctors have a "good faith belief" that a patient's "life could be in jeopardy, even if it's not immediate, that they can perform the abortion," he said. The statute is not to blame for patients being denied care and flown out of state while actively miscarrying, he said. Rather it's the fault of "a pro-abortion agenda that is trying to confuse doctors and make them scared."

Medical groups including the American College of Obstetricians and Gynecologists disagree, saying the threat of severe criminal penalties and state laws that use vague, non-medical language to describe when they can perform and emergency abortion are creating a chilling effect.

In the immediate aftermath of the Dobbs decision, the Biden administration told hospitals they’re required to provide abortions in emergency circumstances. More recently, the administration released materials to train doctors about their obligations under EMTALA and created a portal for pregnant patients to report violations. The administration has publicized a handful of times when it investigated hospitals for noncompliance, including one in 2023 that turned away a patient whose water broke at 18 weeks of pregnancy, putting her at imminent risk of infection and hemorrhage.

Both Biden and Becerra have referenced such stories to argue that Dobbs has had harmful ripple effects beyond abortion.

“When Roe v. Wade was struck down, it impacted more than just abortion care. It impacted access to care — period,” said Becerra.

Samantha Latson contributed reporting.