Can States Legally Ban Emergency Abortions?

Dr. Lauren Miller, a maternal-fetal medicine specialist, had dreamed of opening an ob-gyn residency in Boise, Idaho, but she felt hindered by a recent state law making it a felony for doctors to provide most abortions. Although the law includes exceptions to save the life of the patient, many physicians and reproductive rights organizations argue that it requires a patient to be on death’s door before they can be treated.

In an amicus brief submitted to the U.S. Supreme Court this week in yet another abortion case that the justices will hear this term, Miller recalled treating a patient with kidney disease who was carrying two fetuses. The patient became sick with preeclampsia before the pregnancy was viable, and only one of the fetuses still had a heartbeat.

“The physician treating her when she presented with preeclampsia immediately explained that the pregnancy posed extraordinary risks to her health and fertility, and she wanted to terminate it,” Miller said. “But Idaho’s abortion ban left me in the callous position of communicating the substantial hazards of remaining pregnant any longer only to refuse my patient the abortion she needed and wanted.”

Miller, who now lives in Denver, Colorado, expressed guilt and concern at leaving Idaho but felt that she was forced out because she couldn’t provide patients with necessary care. She is not alone: A recent study by the Idaho Physician Well-Being Action Collaborative found that dozens have stopped practicing in the state since the anti-abortion law went into effect in August 2022. “By leaving Idaho, I feel I deserted my community and contributed to the dearth of physicians capable of caring for pregnant women, however unpredictable or challenging their complications, for generations to come,” Miller said.

Next month, the Supreme Court will consider whether Idaho’s strict abortion ban violates the federal Emergency Medical Treatment and Labor Act, which requires hospitals that receive Medicare funds to provide stabilizing care to anyone who arrives with a medical emergency. Miller is one of four maternal-fetal medicine physicians whose testimony appears in the amicus brief, which, along with dozens of other amici submitted this week by providers, patients, reproductive health organizations, and members of Congress, all urge the court to uphold EMTALA.

In the weeks after the Supreme Court overturned Roe v. Wade, the Biden administration issued a memorandum declaring that EMTALA “preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment.”

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the memorandum said. The Justice Department sued Idaho over its abortion ban shortly after the state law went into effect.

Last fall, after lower courts halted the Idaho law, the Alliance Defending Freedom—a conservative religious legal group behind the Dobbs challenge that overturned Roe, as well as the mifepristone case earlier this week—filed for emergency relief with the Supreme Court, arguing that the “federal government cannot use EMTALA to override in the emergency room state laws about abortion any more than it can use it to override state law on organ transplants or marijuana use.” Separately, federal judges found in early January that EMTALA did not require hospitals to provide abortions that violated a Texas law. Days later, the Supreme Court allowed the Idaho law to go into effect and scheduled arguments for April 24 in the consolidated cases Idaho v. United States and Moyle v. United States.

Other clinicians have described their ethical and medical dilemmas in providing care for pregnant patients in Idaho. In January and February, the organization Physicians for Reproductive Health conducted interviews with nine physicians who currently or formerly practiced in Idaho or who practiced in surrounding states. These interviews found that Idaho’s strict law occasionally resulted in delay or denial of care, with physicians waiting until the last moment to act due to concerns that they could be prosecuted if they performed an abortion before the situation was lethal.

“Good medicine means offering treatment when we find sickness. And in this situation, we’re forced to watch a sickness until it becomes worse before we’re offering the appropriate medical intervention,” one physician said.

Because of these restrictions, pregnant patients must leave Idaho to obtain an abortion. Jennifer Adkins, an Idahoan who joined an amicus brief submitted by the Center for Reproductive Rights, needed to travel to Oregon last year to terminate her pregnancy. Adkins’s fetus had a chromosomal abnormality that meant the pregnancy would almost certainly result in a miscarriage or stillbirth, and she was at risk of developing a “mirror syndrome,” in which the mother develops similar symptoms to the fetus.

In the amicus brief filed by 258 members of Congress—all Democrats—the lawmakers argue that in writing EMTALA, “Congress chose broad language for that mandate.” Even though the law itself does not mention abortion, the signatories of the brief contend, it implicitly includes the procedure as emergency care.

“In this case, respecting the supremacy of federal law is about more than just protecting our system of government; it is about protecting people’s lives,” the lawmakers wrote. “If this Court allows Idaho’s near-total abortion ban to supersede federal law, pregnant patients in Idaho will continue to be denied appropriate medical treatment, placing them at heightened risk for medical complications and severe adverse health outcomes.”

In another amicus brief, 24 states—all of which have Democratic governors and attorneys general—worried that upholding the Idaho law would put greater strain on their resources.

“Hospitals in many amici States are already experiencing strains, resulting in overcrowding, long wait times, and staff shortages, particularly in rural and underserved areas, all of which can affect morbidity and mortality,” the brief said. “Providing medical treatment to additional patients who require emergency abortion care, and who are likely to be facing heightened health risks as a result of being denied such care in their home states, will aggravate these existing healthcare stresses, threatening worse health outcomes for everyone who seeks emergency care.”

The number of abortions in the U.S. increased 10 percent from 2020 to 2023, according to the Guttmacher Institute. States with strict abortion bans saw a decrease, while almost all others saw a sharp uptick—particularly those bordering states with restrictions. The Supreme Court’s decision in this case, which is expected by early July, will continue to reshape abortion access in the country—and, if it upholds Idaho’s law, could further widen the inequality of women’s health care from state to state.