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The Supreme Court will hear arguments on Wednesday about whether Idaho’s near-total abortion ban conflicts with a federal law that protects patients who need emergency care, in a case that would determine access to abortions in emergency rooms across the country.
The federal law affects only the sliver of women who face dire medical complications during pregnancy. But a broad decision by the court could have implications for the about 14 states that have enacted near-total bans on abortion since the court overturned a constitutional right to abortion in June 2022.
The case may also have broader consequences if the justices adopt language about fetal personhood, some legal scholars argue, an increasingly polarizing fight that surfaced recently in Alabama, after its top court ruled that frozen embryos in test tubes should be considered children.
The dispute is the second time in less than a month that the Supreme Court is grappling with abortion. It is a potent reminder that even after Justice Samuel A. Alito Jr. vowed in 2022 that the issue of abortion would return to elected representatives in Dobbs v. Jackson Women’s Health Organization, it continues to make its way back to the court. In late March, the justices considered the availability of the abortion pill mifepristone.
The federal law at issue, the Emergency Medical Treatment and Labor Act, or EMTALA, enacted by Congress in 1986, mandates that hospitals receiving federal funds provide patients with stabilizing care.
The Biden administration maintains that this law collides with — and should override — Idaho’s near-total abortion ban. Under the state law, the procedure is illegal except in cases of incest, rape or when it is “necessary to prevent the death of the pregnant woman,” and doctors who perform abortions could face criminal penalties. Lawyers for the state contend that the administration has maneuvered the federal law in a way that would bypass state bans.
The experience of one doctor, Dr. Megan Kasper, distills the vexing difficulties at play, particularly for those who must consider the state law in the face of potential complications.
Dr. Kasper, who treats pregnant women in Nampa, Idaho, an agricultural city outside Boise, describes herself as morally opposed to abortion unless a pregnancy is nonviable or a woman’s life is in danger.
But Dr. Kasper, 45, who has an independent medical practice and works shifts at a hospital, voiced deep concern about the state’s near-total ban on the procedure.
“It sets a precedent that pregnant women are substandard citizens,” she said, adding, “You’re saying this woman’s health is less important than her fetus instead of saying, ‘I have two patients here, and I’ve got to treat both of them.’”
Dr. Kasper recalled treating a pregnant woman early in her second trimester who was suffering a miscarriage. Although the fetus was still alive, the doctor knew there was no chance of survival.
Before the abortion ban, Dr. Kasper said, “if anything at all made me the least bit uncomfortable, I would say let’s step in and fix this.”
But in that circumstance, she said: “Under the law, I had to be careful how I maneuvered this. Whereas for me, ethically, I knew the baby would not survive.”
The woman ended up having a miscarriage with no need for any abortion care, Dr. Kasper said, but it gave her pause.
“We’re talking about these unusual situations that can be very dicey, and you’re tying our hands,” she said, referring to the state’s abortion ban. “And those are not the situations where you want to be tying our hands.”
In a brief to the court, lawyers for the Biden administration called the effect of the federal law “limited but profound.” The government’s position is that the law can be triggered when a pregnant woman who suffers a dangerous condition that requires immediate medical care goes to an emergency room for medical care.
“In some tragic cases, the required stabilizing care — the only treatment that can save the woman’s life or prevent grave harm to her health — involves terminating the pregnancy,” the government said.
Idaho’s attorney general, Raúl Labrador, has insisted the matter of abortion is now up to the states.
In a brief, he argued that the Biden administration was trying to use federal law to turn Idaho emergency rooms into “abortion enclaves in violation of state law.”
Mr. Labrador, whose office is being assisted in the case by lawyers from Alliance Defending Freedom, the Christian legal advocacy organization leading a challenge to mifepristone, wrote that the Biden administration sought to reinterpret the federal law to “transform” it “into a state-law wrecking ball.”
The Biden administration has relied on EMTALA as a narrow way to challenge state-level abortion bans.
After the court overturned a constitutional right to an abortion, near-total bans on the procedure swiftly took effect in some states, including in Idaho.
After Idaho’s Republican-controlled Legislature passed the Idaho Defense of Life Act, which makes it a crime to perform or assist in performing an abortion, the Biden administration sued the state in August 2022, a few weeks before the law was set to take effect, arguing that federal law should trump the state law when the two directly conflict.
The federal law specifies that a hospital must provide care to a person with an “emergency medical condition.” For pregnant women, the law states, that means when “the absence of immediate medical attention could reasonably be expected to result in” placing “the health of the woman or her unborn child” in “serious jeopardy.”
If a hospital breaks the federal law, it can be sued and potentially lose Medicare funding. The federal law also includes a provision that it will not pre-empt a state or local law unless “the requirement directly conflicts with” the federal law.
But the state law imposes a prison sentence of up to five years if it is violated and can lead to the loss of a doctor’s medical license. The legislation allows exceptions “to prevent the death of the pregnant woman,” to end an ectopic or molar pregnancy, or to end certain pregnancies from rape or incest.
A federal trial judge temporarily blocked the state’s ban. In the fall of 2023, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit put the ruling on hold and reinstated the ban. But that decision was ultimately overridden by an 11-member panel of the appeals court, which temporarily blocked Idaho’s law as the appeal continued.
Idaho asked the Supreme Court to intervene, and the court reinstated the ban and agreed to hear the case.
In Idaho, Dr. Kasper said she was less focused on the political polarization and more on the women she treats. Many of her patients do not understand the implications of the law, she said, largely believing that it offers exceptions for the health of pregnant women.
She was also anxious about the future of the medical profession in her state. For young doctors just entering the field, she said, Idaho is a tough sell.
She said that a doctor weighing job offers might worry, “If I go there, I’m going to be on call in the middle of the night, wondering if I’m going to get in trouble.”
A few doctors have left the state, she said, but as others retire, she fears they will not be replaced.
“Nobody wants to come here,” she said.
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