Outline
In Friday’s newsletter I wrote, “It’s hard to imagine a more discouraging start to the new year for pregnant Americans and those who can/will become pregnant, as well as those who love them, than Tuesday’s ruling from the U.S. Court of Appeals for the Fifth Circuit.” Perhaps I spoke too soon... Only a few hours after that newsletter was sent, Americans were dealt a double whammy when the Supreme Court of the United States (SCOTUS) announced that it will “consider a case in Idaho regarding protections for emergency room physicians who may have to perform an abortion as stabilizing care. And, in the process, the court lifted an injunction that protected those doctors from prosecution in the state.” — Two grave judicial actions, three days apart, in the first week of January. Together, this is perhaps the most frightening and discouraging start to the new year for Americans that one could imagine.
Like the Texas case decided by the Fifth Circuit Court of Appeals, the Idaho case is also about the federal Emergency Medical Treatment and Labor Act (EMTALA). In fact, the day after the Fifth Circuit's January 2 ruling, Idaho “sent the Supreme Court a copy of the Fifth Circuit opinion as supplemental authority, claiming that it ‘shows that the State of Idaho is likely to prevail on the merits of its appeal.’ As such, Idaho Acting Solicitor General Joshua Turner argued, the Fifth Circuit’s decision ‘underscores the appropriateness of granting’ Idaho’s” request that it be allowed to prosecute Emergency Room doctors. And on Friday, SCOTUS granted Idaho’s request.
As of Friday, “ER doctors are now subject to the full extent of Idaho’s abortion ban, which carries penalties of jail time, fines and the loss of a medical license. Those doctors are also subject to Idaho’s civil law that allows immediate and extended family members to sue for up to $20,000 over an abortion procedure.” Because of Friday’s decision by SCOTUS, “Idaho’s hospitals will transfer more patients out of state for abortion care in instances such as when a patient’s water breaks prematurely, and infection could quickly set in. Rather than waiting for it to become a life-threatening emergency, doctors have said, they send the patient to a hospital in a state like Utah, which has an exception to preserve a patient’s health, not just to save their life.”
In April, the Supreme Court will hear oral arguments to determine if medically-necessary, emergency abortions are included in EMTALA’s requirement that ER patients be offered and provided stabilizing care. The fact that SCOTUS, on Friday, allowed Idaho to fully enforce its ban - the strictest in the country - is a worrisome indicator that SCOTUS is likely to rule in favor of Idaho (see video discussion)..
To fully appreciate how truly alarming the case before SCOTUS is, we need to (1) explore the underlying motivations of Idaho's ruling Republican Party, (2) review Idaho’s current abortion ban, and (3) discuss Idaho’s arguments to the Supreme Court.
What are the underlying motivations of Idaho’s ruling Republican Party?
Idaho Republicans’ motivation is clear: They wish to, in the future, eliminate the “life of the mother” exception altogether. We know this because Idaho Republicans have told us so:
In July of 2022, at the Idaho Republican Convention, 700 Republicans from across the state came together to establish the Idaho Republican Party’s official platform. The Party platform is “used to direct policy within the state’s GOP-controlled legislature.” Importantly, it “states the party’s position it wants Republicans in elected office to follow.”
During the abortion discussion, some of the Republican delegates, citing ectopic pregnancies, proposed amending the Party platform to include an abortion exception in cases where the mother is in “lethal danger.” Ectopic pregnancies are not viable and, if not terminated, will cause the death of the pregnant person. Delegate Scott Herndon, who was later elected to the state Senate, “vocally opposed adding the exemption. Herndon argued that both lives, meaning fetus and mother, are of equal value in that situation.”
The amendment failed— by a large margin. Delegates voted 412-164 against adding the life of the mother exception to the Party’s platform. The Republican Party platform now declares that all “abortion is murder from the moment of fertilization” (emphasis mine), with no exception for the mother’s life.
If the Idaho Republican Party is able to “turn this platform position into law, Idaho women could be legally compelled to die from eclampsia, infections due to incomplete miscarriage… and ectopic pregnancy, which is the leading cause of first-trimester maternal death, according to the University of California, Davis Health System.”
Even an amendment “clarifying that miscarriages should not be subject to criminal penalties” failed to make it into the Party’s platform.
While the Idaho case before the US Supreme Court was originally initiated by the US Department of Justice, not Idaho, the case offered Idaho Republicans an opportunity to, incrementally, move closer to their goal of completely banning all abortions - with zero exceptions - by pursuing a court judgment that excludes pregnant people from EMTALA protections and/or declares a six-week embryo as a separate patient. In other words, this case, if decided in Idaho’s favor, could lay the groundwork for states to completely ban abortion without any exception for the life of the mother, as well as to lay the groundwork for future anti-abortion efforts to enshrine fetal personhood into US law.
Anti-abortion groups are championing Idaho’s efforts.
(Newsletter continues below.)
Idaho’s abortion ban
(*Note: While Idaho’s abortion ban includes a very narrow exception for rape/incest, this exception is not relevant to the topic at hand and thus is not discussed herein.)
In contrast to Texas’s abortion ban, which allows for an abortion if the pregnant patient is at “serious risk of substantial impairment of a major bodily function,” Idaho’s abortion ban has zero exception for the pregnant patient’s health. (It’s worth noting that the national abortion ban, proposed by Sen. Graham and supported by national anti-abortion groups, also has no health exception.)
Idaho’s abortion ban only allows for abortion when “necessary to prevent the death of the pregnant woman.” This means that Emergency Department physicians are precluded from performing a medically-necessary abortion to stabilize a patient’s emergency medical condition until the patient’s condition has so seriously deteriorated that the patient is on the very edge of death. It means that, “in Idaho.. providers cannot perform abortions, even if the procedure might preserve a woman’s fertility or spare her from the risk of a stroke, coma or limb amputation. An abortion can be performed only if it is necessary to stop her from dying.” In this way, Idaho’s abortion ban conflicts with the Emergency Medical Treatment and Labor Act (EMTALA).
EMTALA requires Emergency Departments to stabilize patients before they deteriorate to the point of death. For example:
“Jessica” went to the Emergency Room because she was experiencing extreme pain in her lower abdomen. Upon examination, “Dr. Livingston” diagnosed Jessica with a tubal ectopic pregnancy. If a fertilized egg implants into a fallopian tube, the fallopian tube will eventually rupture, causing hemorrhaging and death. Jessica’s fallopian tube had not yet ruptured, so she wasn’t actively dying, yet. Under the protections of EMTALA, Dr. Livingstone is required to stabilize Jessica’s condition by terminating her pregnancy, rather than waiting for her fallopian tube to rupture.
Had Dr. Livingston sent Jessica home without treating her by terminating her pregnancy, both Dr. Livingston and the hospital would be liable to monetary fines imposed by the US Department of Health and Human Services (HHS) under EMTALA. Additionally, Jessica would be able to sue Dr. Livingstone and the hospital under EMTALA for failing to stabilize her.
EMTALA merely requires stabilizing patients experiencing medical emergencies, such as “Jessica” above. Law Dork explains, “It is important, in the course of discussing [the Idaho] litigation, to think about and realize how narrow [EMTALA] protections are… [EMTALA protections are] at most, a small additional band of protection beyond the narrow exceptions in conservative states’ post-Dobbs abortion bans.” Yet, Idaho is fighting for the right of the state to push pregnant patients, like “Jessica,” to the brink of death before Emergency Department physicians may treat them.
In March of 2023, Idaho Republicans rejected a proposal to add a health exception to the state’s abortion ban which would have allowed abortions for “the treatment of a physical condition that, if left untreated, would be life threatening to the pregnant person.”
Dr. Lauren Miller, a maternal fetal medicine specialist in Boise, explained the situation in Idaho under its current abortion ban. She said, “Right now, with a felony charge against you and no further clarity, we can’t act until we truly believe you’re dying. Otherwise, I’ll have to transport you out of state.” Miller added that, “Transporting a patient to a hospital out of state is expensive for the patient and the health care system, and the patient can deteriorate further during the trip” (emphasis mine).
What does Idaho want SCOTUS to do?
First, Idaho wants the Supreme Court of the United States (SCOTUS) to declare that, under the Emergency Medical Treatment and Labor Act (EMTALA), an embryo/fetus is a separate and equal patient from its mother and must be treated as such— as if embryos/fetuses are self-sustaining, free-floating entities, disconnected from and having no effect on the pregnant people carrying them. Law Dork explained, “The implications of [a ruling in Idaho’s favor] are many — and related to ’personhood’ arguments that would hold that a fetus is to be given full protection of the law, including and up to potentially banning all abortion, as [a] constitutional requirement under the Fourteenth Amendment,” including medically-necessary abortions. Idaho’s petition to SCOTUS is not facially a personhood argument; rather, as Law Dork noted, “It is a statutory argument about EMTALA — a misleadingly incorrect argument… but nonetheless, the thread to constitutional personhood arguments is pretty easy to see” (emphasis mine).
Under the guise of “stabilizing both patients,” Idaho’s request would create a hierarchy of rights in which the personhood and wellbeing of a pregnant patient experiencing a medical emergency are diminished and superseded by that of the fetus.
Second, Idaho wants SCOTUS to declare that, because the word “abortion” is not found in the text of EMTALA (*other medically-necessary treatments are also not listed by name in EMTALA), then the patients who need medically-necessary necessary abortions are excluded from EMTALA's protections. — In other words, Idaho believes that pregnant people do not have Fourteenth Amendment “equal protections under the laws.” Law Dork has a good explanation and analysis of Idaho’s arguments here.
A SCOTUS ruling in Idaho’s favor on this issue would, as I recently wrote re the Fifth Circuit’s ruling, mean that “Every single [person in America] who goes to an emergency room has a right to emergency medical care under federal law - except the pregnant ones. They don’t count.” Stephen I. Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and a nationally recognized expert on the federal courts and constitutional law, explained that such a ruling would mean that, if a state were to enact an “abortion ban with no medical exception,” then “EMTALA… would not require (or even allow) a doctor to perform an abortion that is necessary to save the life of the pregnant woman” (emphasis his). You can watch an excellent discussion of the Idaho case with Steve Vladeck and ER doctor Jeremy Faust here. As Steve Vladeck noted in this discussion, the fact that SCOTUS, on Friday, allowed Idaho to fully enforce its ban restricting medically-necessary abortions indicates that at least five Supreme Court Justices agree with Idaho on the merits— which Steve and Jeremy called an ominous sign.
The stakes are high
In practical effect, SCOTUS's ultimate decision will determine: (1) whether pregnant patients experiencing emergency complications which necessitate abortions to stabilize their conditions are provided care under the protection of EMTALA; (2) whether ER doctors are protected from prosecution for performing an abortion when that is the necessary treatment in order to stabilize a pregnant patient; (3) whether states can mandate that pregnant patients experiencing medical emergencies be forced to deteriorate to the very brink of death before doctors can attempt to save the patients’ lives by performing the necessary abortions; (4) whether states can ban medically-necessary abortions altogether; and (5) whether the life of the embryo or fetus takes precedence over the life of the mother (under the guise of treating “both patients” equally).
The stakes could not be higher. As Jessica Levinson noted, “The Supreme Court’s… foray into the legality of state laws criminalizing abortions will force them to wrestle with a fundamental question — are pregnant women entitled to the full protection of the law? Women used to be second-class citizens. We were deprived not just of the right to vote, but until very recently, we were deprived of the right to do basic things such as open bank accounts. It wasn’t until 1993, for example, that we reached the point where every state had outlawed spousal rape. Now, less than two years after the Supreme Court stripped abortion rights from the U.S. Constitution, it stands poised to put women’s ability to obtain medical care at further risk. This time, as the court addresses questions related to restrictive state abortion laws, it will focus on a federal law that entitles all people to emergency medical care regardless of their ability to pay for that care. The specific legal question for the justices is whether, under this federal law, pregnant women facing true medical emergencies may obtain abortions even in states that would otherwise outlaw the procedure.”
SCOTUS’s decision on Friday allowing Idaho to restrict emergency abortions shows us “that a woman’s right to medical care is shaky at best.”
Sadly, as Dahlia Lithwick and Mark Joseph Stern observed, the motivations, biases, and sexism of Republicans has been laid bare. Lithwick and Stern note that “[n]o matter how SCOTUS rules, the fallout is already all around us. The stories of Kate Cox in Texas, devastated would-be mothers in Tennessee, and a horrifying prosecution of a mother who miscarried in Ohio all surface the brutal reality of the post-Dobbs zeitgeist: Any woman who seeks to terminate a pregnancy is wicked, any woman who miscarries is evil, and any woman who—for reasons of failing health, circumstance, or simple bad luck—does not prove to be an adequate incubator deserves whatever she gets. Every unborn fetus is the priority over the pregnant person carrying it and must be carried to term at all costs. So goes the moral calculus of the death-panel judges who now determine how to weigh the competing interests between real, existing human life and a state’s dogmatic fixation with a fetus that, by definition, must be seraphically innocent.”
As we wait for the Supreme Court to issue its decision, pregnant people in both “Idaho and Texas who face serious threats to their health including sepsis, preeclampsia and placental abruption have few options. They will have to hope that they can find a way to travel out of state to obtain care. That would, of course, be preferable to forcing such women to hope that their conditions deteriorate enough that it is clear that providing an abortion is the only way to save their lives. If we need a federal law to protect people's ability to obtain emergency medical treatment, then the court should conclude that the people covered by the law include pregnant women. The opposite conclusion would make women less than full citizens — again.”
Again this is a human rights violation. If a pregnant woman is a sub citizen or sub human then she should be tax exempt. If a fetus has rights that supersedes the mother then if the fetus causes the death of the mother then the fetus should rightly be charged with murder. You can see how utterly ridiculous this is and this is the level the Republican Party has stooped to. My ballot is looking to be blue or bald. I am thoroughly pissed at what the GOP has become though none of them are perfect at least the Dems will stand up for our rights.