The Supreme Court will hear another case about abortion rights on Wednesday. Protestors gathered outside the court last month when the case before the justices involved abortion pills.
Tom Brenner for The Washington Post/Getty Images
hide caption
toggle caption
Tom Brenner for The Washington Post/Getty Images
The Supreme Court will hear another case about abortion rights on Wednesday. Protestors gathered outside the court last month when the case before the justices involved abortion pills.
Tom Brenner for The Washington Post/Getty Images
In Idaho, abortion is only legal when a pregnant patient faces death. But a federal law known as EMTALA requires doctors to provide “stabilizing treatment” to patients in the emergency department.
The Biden administration sees that as a direct conflict, which is why the abortion issue is back – yet again – before the Supreme Court on Wednesday.
The case began just a few weeks after the justices overturned Roe v. Wade in 2022, when the federal Justice Department sued Idaho, arguing that the court should declare that “Idaho’s law is invalid” when it comes to emergency abortions because the federal emergency care law preempts the state’s abortion ban. So far, a district court agreed with the Biden administration, an appeals court panel agreed with Idaho, and the Supreme Court allowed the strict ban to take effect in January when it agreed to hear the case.
The case, known as Moyle v. United States(Mike Moyle is the speaker of the Idaho House), has major implications on everything from what emergency care is available in states with abortion bans to how hospitals operate in Idaho. Here’s a summary of what’s at stake.
1. Idaho physicians warn patients are being harmed
Under Idaho’s law, abortion is only legal when a doctor judges that “the abortion was necessary to prevent the death of the pregnant woman.”
In a filing with the court, a group of 678 physicians in Idaho described cases in which women facing serious pregnancy complications were either sent home from the hospital or had to be transferred out of state for care. “It’s been just a few months now that Idaho’s law has been in effect – six patients with medical emergencies have already been transferred out of state for [pregnancy] termination,” Dr. Jim Souza, chief physician executive of St. Luke’s Health System in Idaho, told reporters on a press call last week.
Those delays and transfers can have consequences. For example, Dr. Emily Corrigan described a patient in court filings whose water broke too early, which put her at risk of infection. After two weeks of being dismissed while trying to get care, the patient went to Corrigan’s hospital – by that time, she showed signs of infection and had lost so much blood she needed a transfusion. Corrigan added that without receiving an abortion, the patient could have needed a limb amputation or a hysterectomy – in other words, even if she didn’t die, she could have faced life-long consequences to her health.
Attorneys for Idaho defend its abortion law, arguing that “every circumstance described by the administration’s declarations involved life-threatening circumstances under which Idaho law would allow an abortion.”
Ryan Bangert, senior attorney for the Christian legal powerhouse Alliance Defending Freedom, which is providing pro-bono assistance to the state of Idaho, says that “Idaho law does allow for physicians to make those difficult decisions when it’s necessary to perform an abortion to save the life of the mother,” without waiting for patients to become sicker and sicker.
Still, Dr. Sara Thomson, an OB-GYN in Boise, says difficult calls in the hospital are not hypothetical or even rare. “In my group, we’re seeing this happen about every month or every other month where this state law complicates our care,” she says. Four patients have sued the state in a separate case arguing that the narrow medical exception harmed them.
“As far as we know, we haven’t had a woman die as a consequence of this law, but that is really on the top of our worry list of things that could happen because we know that if we watch as death is approaching and we don’t intervene quickly enough, when we decide finally that we’re going to intervene to save her life, it may be too late,” she says.
2. Hospitals are closing units and struggling to recruit doctors
Labor and delivery departments are expensive for hospitals to operate. Idaho already had a shortage of providers, including OB-GYNS. Hospital administrators now say the Idaho abortion law has led to an exodus of maternal care providers from the state, which has a population of 2 million people.
Three rural hospitals in Idaho have closed their labor-and-delivery units since the abortion law took effect. “We are seeing the expansion of what’s called obstetrical deserts here in Idaho,” said Brian Whitlock, president and CEO of the Idaho Hospital Association.
Since Idaho’s abortion law took effect, nearly one in four OB-GYNs have left the state or retired, according to a report from the Idaho Physician Well-Being Action Collaborative. The report finds the loss of doctors who specialize in high-risk pregnancies is even more extreme – five of nine full time maternal-fetal medicine specialists have left Idaho.
Administrators say they aren’t able to recruit new providers to fill those positions. “Since [the abortion law’s] enactment, St. Luke’s has had markedly fewer applicants for open physician positions, particularly in obstetrics. And several out-of-state candidates have withdrawn their applications upon learning of the challenges of practicing in Idaho, citing [the law’s] enactment and fear of criminal penalties,” reads an amicus brief from St. Luke’s health system in support of the federal government.
“Prior to the abortion decision, we already ranked 50th in number of physicians per capita – we were already a strained state,” says Thomson, the doctor in Boise. She’s experienced the loss of OB-GYN colleagues first hand. “I had a partner retire right as the laws were changing and her position has remained open – unfilled now for almost two years – so my own personal group has been short-staffed,” she says.
ADF’s Bangert says he’s skeptical of the assertion that the abortion law is responsible for this exodus of doctors from Idaho. “I would be very surprised if Idaho’s abortion law is the sole or singular cause of any physician shortage,” he says. “I’m very suspicious of any claims of causality.”
3. Justices could weigh in on fetal “personhood”
The state of Idaho’s brief argues that EMTALA actually requires hospitals “to protect and care for an ‘unborn child,'” an argument echoed in friend-of-the-court briefs from the U.S. Conference of Catholic Bishops and a group of states from Indiana to Wyoming that also have restrictive abortion laws. They argue that abortion can’t be seen as a stabilizing treatment if one patient dies as a result.
Thomson is also Catholic, and she says the idea that, in an emergency, she is treating two patients – the fetus and the mother – doesn’t account for clinical reality. “Of course, as obstetricians we have a passion for caring for both the mother and the baby, but there are clinical situations where the mom’s health or life is in jeopardy, and no matter what we do, the baby is going to be lost,” she says.
The Idaho abortion law uses the term “unborn child” as opposed to the words “embryo” or “fetus” – language that implies the fetus has the same rights as other people.
Mary Ziegler, a legal historian at University of California – Davis, who is writing a book on fetal personhood, describes it as the “North Star” of the anti-abortion rights movement. She says this case will be the first time the Supreme Court justices will be considering a statute that uses that language.
“I think we may get clues about the future of bigger conflicts about fetal personhood,” she explains, depending on how the justices respond to this idea. “Not just in the context of this statute or emergency medical scenarios, but in the context of the Constitution.”
ADF dismisses the idea that this case is an attempt to expand fetal rights. “This case is, at root, a question about whether or not the federal government can affect a hostile takeover of the practice of medicine in all 50 states by misinterpreting a long-standing federal statute to contain a hidden nationwide abortion mandate,” Bangert says.
4. The election looms large
Ziegler suspects the justices will allow Idaho’s abortion law to remain as is. “The Supreme Court has let Idaho’s law go into effect, which suggests that the court is not convinced by the Biden administration’s arguments, at least at this point,” she notes.
Whatever the decision, it will put abortion squarely back in the national spotlight a few months before the November election. “It’s a reminder on the political side of things, that Biden and Trump don’t really control the terms of the debate on this very important issue,” Zielger observes. “They’re going to be things put on everybody’s radar by other actors, including the Supreme Court.”
The justices will hear arguments in the case for one hour on Wednesday morning. A decision is expected by late June or early July.
