Hope for the best, but be prepared for the worst.
The Supreme Court appeared split Wednesday in a case over whether a federal law requiring hospitals to provide appropriate stabilizing medical treatment for patients could in some cases overrule a state’s abortion ban — a question with tremendous implications for pregnant patients’ ability to access emergency health care.
The case, Idaho v. United States, concerns enforcement of the Emergency Medical Treatment and Labor Act, known as EMTALA, in instances when it could conflict with individual state abortion bans. Passed in 1986, the law requires that hospitals with emergency departments that participate in Medicare — the vast majority of hospitals — screen patients and provide them with appropriate stabilizing medical care, regardless of their ability to pay. That care can include abortion, which is in some cases deemed the medically appropriate care for a health emergency.
The Department of Justice has cited EMTALA to partially challenge Idaho’s near-total abortion ban, passed in 2020 and activated after the Supreme Court overturned Roe v. Wade in the 2022 case Dobbs v. Jackson Women’s Health Organization. Idaho’s law, one of the nation’s strictest, includes a very narrow list of exceptions, allowing abortion only when a pregnancy is the result of rape or incest, when termination is necessary to save the pregnant person’s life, or when it is ectopic (outside the uterus) or molar (when tumors form instead of a placenta). It does not allow an exception if staying pregnant otherwise threatens someone’s health.
The Justice Department’s argument has argued that in medical emergencies where abortion is the appropriate stabilizing treatment, the federal law must trump Idaho’s ban. But Idaho has argued that the state’s law should supersede EMTALA because the federal law doesn’t mention abortion by name. EMTALA does not explicitly state which medical procedures physicians should provide.
[…]
While focused on one state, the ruling will have implications across the country. A decision upholding Idaho’s ban in full — and finding that EMTALA does not preserve the right to an abortion under emergency medical circumstances — could encourage states with similarly restrictive bans to ignore the federal emergency care protection. Arkansas, Oklahoma and South Dakota, which all enforce near-total bans, also do not have exceptions for the health of the pregnant person.
“If Idaho is allowed to excise emergency abortions from EMTALA … any state with a ban can turn around and will know its excision is unchallengeable,” said Sara Rosenbaum, a professor emerita of health law and policy at George Washington University who has written extensively about the federal health law. Rosenbaum has signed onto an amicus brief encouraging the court to rule in favor of the federal government.
A victory for Idaho could have even deeper implications, she argued, such as discouraging emergency room staff in states with strict bans from caring for pregnant patients, even if their pregnancy is incidental to their medical concern. And it could offer a road map for states to implement other laws that limit access to health care — for instance, outlawing certain types of medical care for patients with HIV or substance use disorders.
“The basis of Dobbs is states have the power to regulate medical care. If you extend that to EMTALA, you open up EMTALA to whatever drama a state wants to play out in its emergency rooms,” Rosenbaum said.
See here for my previous update. This story doesn’t mention the Texas connection, probably because SCOTUS only took the Idaho case and not the Texas case, but you can certainly add our state to the list of those that will absolutely let pregnant women suffer and die due to its existing fanatical abortion ban. You know, like it’s been doing all along. The Trib‘s preview story got into that. Law Dork, TPM and its live blog, Mother Jones, Slate, and SCOTUSBlog have more.
The right wing extremists that are the majority of the Supreme Court may not recognize deathly ill pregnant women as a group in desperate need of their help, but they may see the peril of the GOP in November as an emergency. The nationwide backlash to draconian Republican anti-abortion laws may give them pause enough to temper their ruling. Helping Republicans is their first and only priority.
Pingback: Texas Medical Board’s abortion guidance is a mess | Off the Kuff