Justices to consider whether federal law requires ERs to perform the procedure in dire circumstances, even in states with abortion bans
WSJ
Dr. Alison Edelman, an obstetrician in Portland, Ore., said her hospital receives pregnant patients sent from Idaho with dangerously high blood pressure and other serious conditions that can deteriorate in a matter of minutes.
Idaho doctors, she said, seek to make such transfers because they are unable to provide the patients an abortion if they need one, in light of a state ban on the procedure—punishable by two to five years in prison—with narrow exceptions, including if a woman’s life is in danger. Many doctors say that exception isn’t easy to apply.
“It is incredibly scary,” Edelman said. “When there’s any delay, that really impacts the outcome for the patient.”
Her team has reported some of the incidents as apparent violations of a federal law known as the Emergency Medical Treatment and Labor Act, which in most circumstances prohibits transferring patients to another hospital if their condition is unstable.
The law will be in the spotlight at the Supreme Court on Wednesday, when the justices consider one of the most pressing questions to emerge since they eliminated the federal constitutional right to an abortion two years ago: Under what circumstances can women with serious pregnancy complications obtain abortions in states where the procedure is banned?
The case centers on a Biden administration lawsuit, filed by the Justice Department in 2022, that argues Idaho’s ban failed to provide adequate legal cover to doctors who provide abortions in medical emergencies. With the Supreme Court now giving states the power to restrict abortion, the administration has few legal options as it seeks to promote abortion rights.
The high court is hearing an appeal by Idaho after lower courts blocked the state ban to the extent it prevented emergency abortions. It is the second abortion case before the court this term and has flown under the radar relative to a case last month in which the justices considered whether to roll back approval for the widely used abortion pill mifepristone. The court at oral argument signaled it was unlikely to do so.
More than a dozen states have imposed near total bans on abortion since the Supreme Court overruled Roe v. Wade in its 2022 decision Dobbs v. Jackson Women’s Health Organization.
Stories of women in conservative states unable to obtain abortions until they were septic or on life support have reverberated with many Americans, shifting popular opinion on abortion and helping Democrats win political races.
“One thing we have seen move the needle post-Dobbs is the story of pregnancy complications,” said David S. Cohen, a law professor at Drexel University.
The Arizona Supreme Court ruled that the state must revive an 1864 ban on abortion during pregnancy, except in life-saving situations, potentially setting up a political fight in the 2024 presidential race. Photo: Matt York/ AP
Still, the Biden administration might face challenges in the case. States are given wide latitude to regulate the practice of medicine, and Idaho notes the federal emergency care law says nothing specifically about abortion. The state argues the administration’s position is novel and unsupportable, saying the federal law doesn’t demand any specific medical procedures at all. In a separate case from Texas, an appeals court ruled the federal emergency-care law “does not mandate any specific type of medical treatment, let alone abortion.”
The Emergency Medical Treatment and Labor Act was passed by Congress in 1986, an effort to prevent hospitals from dumping or denying patients for economic reasons. It requires hospitals that participate in Medicare, the health-insurance program for seniors and younger people who are disabled, to provide emergency care to anyone regardless of his or her ability to pay.
The law defines an emergency medical condition as acute symptoms that would jeopardize “health or result in serious impairment to bodily functions or dysfunction to bodily organs or parts” without immediate medical attention. That standard is broader than language in some state abortion bans that allow for the procedure only when a woman is at risk of death.
There have been rare cases where the federal government has found that hospitals have violated the law by not providing abortions in medical emergencies.
In December 2022, Anya Cook of Fort Lauderdale, Fla., was early in her second trimester of pregnancy when her water broke. Doctors, she said, told her the unborn daughter that she had nicknamed Bunny was expected to be stillborn in the next 12 to 24 hours. She said she was told that under Florida’s 15-week abortion ban as long as there was a heartbeat “they couldn’t touch me.”
Cook left the hospital and ultimately delivered her daughter stillborn in the bathroom of a hair salon. She experienced serious blood loss and ended up on life support.
Federal investigators determined that the hospital had placed Cook “at immediate risk for deterioration of her health and wellbeing as a result of untreated emergency medical conditions.”
Antiabortion advocates hope the Supreme Court will hold that the act contains legal protections for fetal life. They point to a provision of the emergency-care law prohibiting hospitals from putting the life of a pregnant woman or her “unborn child” in jeopardy, arguing this requires hospitals to consider both interests when deciding whether to provide an abortion.
“They are both patients so you need to do everything you can to save them both,” said John Bursch, an attorney with the Alliance Defending Freedom, which is representing Idaho in the case, along with the state attorney general.
A decision is expected by the end of June.
