The miscarriage was inevitable. Could she have had an ER abortion? Supreme Court to decide

WASHINGTON − A woman 18-weeks pregnant arrived in an Idaho emergency room in distress.

Her condition – hourglassing membranes − was so dire, a miscarriage was inevitable.

Doctors feared running afoul of Idaho’s abortion restrictions if they provided the treatment that is standard in these situations: offering an abortion because the infection risk was high and the fetus would not survive.

The patient could not travel to another state; she would likely miscarry during the trip and might bleed to death.

So, she waited.

Several days later, the woman was in the emergency room where, after delivering a still-born baby, she was hospitalized to prevent a rapidly developing infection from spreading.

Doctors with the Idaho Coalition for Safe Healthcare shared that case – and others – in a filing with the Supreme Court ahead of Wednesday’s oral arguments into whether a federal law requiring hospitals provide emergency treatment overrides state abortion restrictions.

“These bans have broken down the safe system of health care that we had in place for our pregnant patients,” said Dr. Caitlin Gustafson, an Idaho doctor who spoke at a news conference organized by the National Women’s Law Center, which also filed a brief to the court.

Idaho officials say the ban reflects the will of state residents. They accuse the Biden administration of unlawfully trying to override it.

“The administration’s radical interpretation of federal law is nothing more than a reckless disregard for Idaho’s right to protect life,” Idaho Attorney General Raúl Labrador said in a statement.

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Showdown between Biden and states with abortion bans

The consolidated cases, Idaho v. United States and Moyle v. United States, are a showdown between the Biden administration and states that have enacted strict abortion limits after the Supreme Court in 2022 erased the right to an abortion.

It’s the high court’s first chance to weigh in on the state laws restricting abortion that have gone into effect since deciding Dobbs v. Jackson Women's Health Organization.

And it comes one month after the court heard a challenge to a commonly used abortion drug and as the abortion issue continues to remake electoral politics, including in Arizona where a near-total ban from 1864 is back in play.

The federal law at issue, passed in 1986 to prevent hospitals from turning patients away if they couldn’t pay, is one of the few tools President Joe Biden had to respond to the overturning of Roe v. Wade.

Biden directed the U.S. Department of Health and Human Services to make it clear doctors must provide abortions if needed in emergency situations to prevent death or serious illness. The law applies to any hospital receiving federal funding, such as through Medicare.

“It’s outrageous, and it’s dangerous,” Biden said of doctors delaying emergency care because of the need to consult with a lawyer about whether the care is allowed under state law.

Lower courts are divided

Texas quickly sued the administration.

Weeks later, the Biden administration sued Idaho, claiming that its near-total abortion ban directly conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). Doctors who violate Idaho's law while trying to comply with the federal law can be imprisoned and lose their medical license.

The issue has divided the lower courts.

The Louisiana-based 5th Circuit Court of Appeals sided with Texas, ruling in January that the administration can’t use EMTALA to require Texas hospitals provide emergency care abortions.

Conversely, a federal district judge in Idaho said the state couldn’t enforce the part of its ban that applied to emergency care when a patient’s health is at risk. That decision was overridden by three Trump-appointed judges on the California-based 9th Circuit Court of Appeals – only to be later reversed by the full circuit.

In January, the Supreme Court agreed to hear the case and allowed Idaho to fully enforce its law in the meantime.

Organ failure, uncontrollable bleeding and permanent reproductive damage

How the justices decide the case could potentially affect abortion restrictions in more than 20 states. Even when bans include medical exceptions, the exceptions can be too vague to provide the certainty needed by patients and doctors, according to opponents of the bans.

By contrast, the Biden administration says, the federal law is clear that hospitals that receive federal funding must provide “necessary stabilizing treatment” when the health of the mother is in danger – not just when she’s on the brink of death. Consequences of inaction can include infection, organ failure, uncontrollable bleeding and permanent damage to the reproductive system.

Idaho argues the federal requirement applies only to treatments “available” at a hospital and abortion is not available in Idaho under most circumstances.

“In sum, EMTALA leaves the question of specific treatments for stabilizing care to state law,” the state wrote in its main brief previewing its oral arguments. Twenty-two states have told the court they back Idaho’s position.

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Federal law doesn't mention abortion

Idaho also argues that while the federal law never specifically mentions abortion, it does provide explicit protection for “unborn children.” For example, the law’s definition of an emergency medical condition includes one that places the “health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy.”

The Biden administration and their backers counter that Congress added that language to make it clear hospitals must provide care to an unborn child even if the woman’s own health is not at risk.

“That language was added in order to expand access to care for pregnant people, not to limit it,” said Katie O’Connor, director of federal abortion policy for the National Woman’s Law Center.

'Is she bleeding enough? Is she septic enough'

Complaints that pregnant women have been turned away from hospitals spiked after Dobbs, according to an investigation by The Associated Press.

Most emergency medical workers see pregnant patients during virtually every shift, according to the major medical associations supporting the administration, including the American College of Obstetricians and Gynecologists.

While not all pregnancy complications require immediate intervention, many are dangerous.

Cases of ruptured membranes too early in a pregnancy for a fetus to survive occurred, on average, just over once a week at St. Luke’s Health System in Idaho last year. Such situations put a patient at high risk of infection, sepsis and hemorrhaging.

Before Idaho’s ban went into effect, doctors acted as quickly as possible to preserve the woman’s health and her future reproductive ability, said Dr. Jim Souza’s, the hospital’s chief physician executive.

“Since then, there’s a lot of second guessing and handwringing,” he said. “`Is she sick? Is she bleeding enough? Is she septic enough for me to do this abortion and not risk going to jail and losing my license?”

Three ambulances are parked in front of the emergency room at Childrens Health of Orange County on Tuesday, Nov. 1, 2022.
Three ambulances are parked in front of the emergency room at Childrens Health of Orange County on Tuesday, Nov. 1, 2022.

When Idaho’s law was paused last year for emergency medical conditions, only one pregnant patient was transported to another state for care. But after the Supreme Court, in January, put the law fully into effect, six patients with emergency conditions have been transferred to other states where they could get abortions, according to Souza.

Doctors are leaving Idaho

Doctors are also leaving Idaho, which already had a shortage of physicians. Two hospitals have closed their labor and delivery services.

“It’s not hard to understand why,” Gustafson said. “Because, really, how many physicians are willing to subject themselves to the risk of jail time and civil financial penalties for doing their job?”

But state officials defending the ban told the Supreme Court that if they side with the Biden administration, doctors “would become essentially unregulated, with their own medical judgment superseding all state laws regulating the practice of medicine.”

“The whole point of Dobbs was to restore to the states their authority to regulate abortion,” Labrador and the state’s other attorneys wrote in their final brief. “Yet the administration seeks to thwart Idaho’s exercise of self-government on this important topic.”

This article originally appeared on USA TODAY: Supreme Court tests Idaho abortion ban against federal EMTALA