WASHINGTON (AP) — The Supreme Court appears poised to rule that Idaho hospitals can perform medically necessary abortions to stabilize patients’ conditions, at least for now, despite the state’s strict abortion law, according to a copy of the opinion posted briefly on the court’s website Wednesday and obtained by Bloomberg News.
The document suggests that a 6-3 ruling by the court will restore a lower court order allowing Idaho emergency rooms to perform abortions that save women’s health while the broader litigation continues.
The Justice Department had sued Idaho over its abortion law, which allows a woman to have an abortion only if her life – not her health – is in danger. Idaho doctors say they have been unable to provide the stabilizing treatment required by federal law, which is normally standard care. Since Idaho’s law took effect in January, they have had to fly at least half a dozen pregnant patients to other states.
But Idaho lawyers have said their state law allows women to have abortions in emergency situations and does not conflict with federal law.
The federal law, called the Emergency Medical Treatment and Active Labor Act (EMTALA), requires doctors to stabilize or treat any patient who comes to the emergency room.
Here’s a look at the history of EMTALA, what rights it gives patients, and how a Supreme Court ruling could change that.
What protection does EMTALA offer patients in the emergency room?
By law, emergency departments must offer a medical examination when you come to their facility. The law applies to almost all emergency departments – any that accept Medicare funds.
These emergency departments must stabilize patients in the event of a medical emergency before discharging or transferring them. And if the emergency department does not have the resources or staff to adequately treat the patient, staff must arrange a medical transfer to another hospital after verifying that the facility can accommodate the patient.
So, for example, if a pregnant woman comes to the emergency room fearing that she is going into labor, but there is no gynecologist available to deliver her baby, hospital staff cannot simply refer the woman elsewhere.
Why was this law created?
Look at Chicago in the early 1980s.
Doctors at the city’s public hospital faced a huge problem: thousands of patients, many of them black or Latino, were arriving in very penniless condition – and they were being sent there from private hospitals in the city that refused to treat them. Some were gunshot victims whose condition had not been stabilized. Most of them had no health insurance.
Chicago was not alone. Doctors at public hospitals across the country reported similar problems. Media reports, including one about a pregnant woman who gave birth to a dead baby after being turned away from two hospitals because she was uninsured, increased public pressure on politicians to take action.
Congress drafted a bill about which Republican Senator David Durenberger of Minnesota said at the time: “Whether rich or poor, Americans have a right to access to quality health care. This issue of access should be the responsibility of federal, state and local governments.”
Then-Republican President Ronald Reagan signed the law in 1986.
What happens when a hospital turns away a patient?
The hospital is being investigated by the Centers for Medicare and Medicaid Services, and if they find that the hospital violated a patient’s right to health care, it could lose its Medicare funding, a critical source of revenue that most hospitals need to keep their doors open.
However, the federal government typically imposes fines when a hospital violates EMTALA, which can amount to hundreds of thousands of dollars.
Why did the Supreme Court consider the law?
Since the Supreme Court struck down the constitutional right to abortion, Democratic President Joe Biden has repeatedly reminded hospitals that his administration views abortion as part of the stabilizing care that facilities must provide under EMTALA.
The Biden administration argues that Idaho law prevents emergency room doctors from providing an abortion if a woman needs one in a medical emergency.
However, the Idaho Attorney General pointed out that EMTALA also requires hospitals to consider the health of the “unborn child” when providing treatment. Idaho attorneys also said there is no conflict between state and federal law because Idaho allows doctors to perform an abortion when the woman’s life is at stake.
What do the supporters say?
Abortion opponents argue that state laws banning abortion could coexist with federal law requiring hospitals to stabilize pregnant patients in emergency situations.
The well-known anti-abortion group Susan B. Anthony Pro-Life America called the lawsuit in Idaho a “PR stunt.”
“The EMTALA case is based on the false assumption that pregnant women cannot receive emergency care under pro-life laws,” said Kelsey Pritchard, the group’s state public affairs director, after the case was heard earlier this year. “It is a clear fact that pregnant women can receive miscarriage care, ectopic pregnancy care and emergency medical treatment in all 50 states.”
However, many doctors believe that the issue is not as clear-cut as anti-abortion activists claim.
In scarce cases, a woman may be at risk of sepsis, bleeding or loss of reproductive organs if a problematic pregnancy is not terminated. But Idaho state law forces a doctor to wait to terminate a pregnancy until the patient is close enough to death, doctors argue.
If doctors perform an abortion, they risk a prison sentence of at least two years if the woman’s life is not in danger.
“There is nothing worse than feeling like you know what your patient needs and you can’t get it for them as a physician,” Dr. Jessica Kroll, president of the Idaho American College of Emergency Physicians, told reporters during a press conference earlier this month.
