Idaho Goes to the Supreme Court to Argue That Pregnant People Are Second-Class Citizens

In the early 1980s, doctors at Chicago’s Cook County Hospital faced an alarming trend: Thousands of patients from across the city were being transferred to the county facility, including patients whose conditions were unstable, making the transfers medically risky. Many patients ended up in the intensive care unit; others died.

Several years later, the New England Journal of Medicine published a study confirming that transfers had skyrocketed from roughly 1,300 in 1980 to nearly 7,000 in 1983. The study supported what doctors had observed, according to the Chicago Tribune: “that private hospitals in the area are shirking their duty to provide care to the needy.” Reviewing some 500 transfers from private medical facilities to the Cook County hospital over a one-month period, the study found that the vast majority of patients were unemployed, and many had been transferred because they lacked the means to pay for health care. Eighty-nine percent were Black or Hispanic, 24 percent were medically unstable, and just 6 percent had consented to transport.

The Chicago doctors weren’t alone. Across the country, the transfer practice, known as “patient dumping,” had become a serious problem, especially for those in labor. “This was a full-term baby who would have been alive right now if the system hadn’t shuffled the mother around,” one doctor told the San Francisco Examiner in 1985 about a patient in labor who arrived at an Oakland hospital after being turned away from two other facilities. The baby was stillborn. “When she walked in here, I knew immediately something was really wrong,” the obstetrician said. “She was doubled over, holding her belly.”

The problem became so grave that Congress stepped in, passing the Emergency Medical Treatment and Active Labor Act, known as EMTALA. Still in effect today, the law is straightforward: It requires all hospitals that receive certain federal funds to conduct a medical assessment of every patient who shows up at the ER and, in a medical emergency, provide necessary stabilizing treatment. The law defers to medical professionals to determine when a medical emergency exists and what stabilizing treatments are needed.

EMTALA operates as a “point of rescue,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “It is the one law that we have that makes it so that anyone can get access to care when they’re having a medical emergency.”

For nearly 40 years, necessary stabilizing treatment under EMTALA has included abortion care. In July 2022, weeks after the U.S. Supreme Court overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization, the Department of Health and Human Services posted a memo reiterating hospitals’ obligations under EMTALA. When a state had banned abortion but abortion was the stabilizing treatment a patient needed, the memo stated, EMTALA preempted the state law.

In a letter accompanying the guidance, Health Secretary Xavier Becerra assured providers that EMTALA “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.”

“That’s the exact evil that Congress was trying to stop.”

But in a case pending before the Supreme Court, scheduled for oral arguments on April 24, Idaho claims that abortion is not protected under EMTALA, and that the federal government is interfering with state’s ability to ban the procedure. “The whole point of Dobbs was to restore to the states their authority to regulate abortion,” lawyers with the far-right Alliance Defending Freedom, who are representing Idaho, wrote in their brief. “Yet the administration seeks to thwart Idaho’s exercise of self-government on this important topic.” The claim that EMTALA covers abortion, they wrote, “is imaginary.”

If the court were to accept Idaho’s recasting of EMTALA, the safety-net law meant to eliminate discrimination in emergency medical care would be nullified, experts say, singling out pregnant people as a separate and unequal class of patients. Such a ruling would hobble the ability of medical professionals to respond appropriately to emergencies and encourage a new generation of patient dumping.

“Idaho’s arguments would make pregnant people second-class citizens in emergency rooms,” said Alexa Kolbi-Molinas, deputy director of the reproductive freedom project at the American Civil Liberties Union. “That’s the exact evil that Congress was trying to stop.”

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, near-total abortion bans quickly took effect in several states, including Idaho, where the so-called Defense of Life Act bans all abortions save for those necessary to prevent the death of the pregnant person. During a legislative hearing on the measure in 2020, the law’s sponsor, state Sen. Todd Lakey, said the law included no exception for the broader health of the pregnant person because that was not as important as the life of the fetus. “I would say it weighs less, yes, then the life of the child,” he said.

“If we’re talking health of the mother, that’s a nuanced decision that could be something much less than life,” Lakey said. “If the decision was based solely on a question of some type of health, then you’re talking about taking the life of the unborn child, so that weighs more heavily than simply ‘health.’”

Idaho’s ban has placed health care providers in a precarious position. Violations of EMTALA’s mandate can result in hefty fines for doctors and hospitals and the loss of federal funding that facilities use to treat elderly patients and people with disabilities. Doctors who violate Idaho’s abortion ban, meanwhile, face criminal prosecution, two to five years in prison for each offense, and loss of their medical license.

The narrowness of the exception to Idaho’s ban prompted the federal government to sue the state in August 2022, arguing that the law impermissibly conflicts with EMTALA’s requirement that providers treat “emergency medical conditions,” not only those that pose “risks to life,” but also conditions that place a person’s health in “serious jeopardy.” The text of EMTALA clearly states that where conflicts with state law exist, the federal law takes precedence.

The government asked a federal district court to immediately block Idaho’s law from taking effect while the lawsuit was ongoing. The court agreed, enjoining the Idaho ban “to the extent that statute conflicts with EMTALA-mandated care.”

Idaho appealed the ruling and lost, prompting the state to ask the Supreme Court to intervene, which it did in January, lifting the district court injunction and scheduling the case for oral arguments.

In legal filings, Idaho points out that the word “abortion” is not included in the EMTALA statute, claiming there was no understanding that Congress meant to include abortion care among potential stabilizing treatments required under the law. In contrast, the statute does include the phrase “unborn child,” which according to the state, means that the well-being of the fetus must be weighed in addressing medical emergencies.

Idaho law doesn’t conflict with EMTALA at all, the lawyers argue, because Idaho regulates the practice of medicine in the state. EMTALA only requires doctors to provide stabilizing treatments that are “available” at a given hospital, and since abortion is illegal, it is thus unavailable. And because abortion is unavailable in Idaho, a hospital could legally transfer a patient somewhere else for care, presumably without being accused of dumping. Practically speaking, that would mean coordinating a transfer to a facility out of state and hours away.

Idaho claims the Department of Health and Human Services’ 2022 guidance was merely an attempt to legalize all abortion in the state. “A patient who wanted, but was denied, an abortion cannot wield EMTALA to force an emergency room to perform one,” reads the lawyers’ Supreme Court brief.

Huberfeld, the health law expert, who along with several other legal scholars filed an amicus brief supporting the federal government’s position, says Idaho is misinterpreting the law. EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. At the time of EMTALA’s passage, abortion was protected care, and even states that had banned the procedure later in pregnancy included exceptions for the life and health of the pregnant person. Physicians have long “acknowledged their statutory obligation to provide abortion care in those rare emergencies in which terminating a pregnancy is the necessary ‘stabilizing’ treatment,” Huberfeld and her colleagues wrote.

The reference to an “unborn child,” meanwhile, is defined in the EMTALA statute — just not in the way that Idaho claims. “Three of the four mentions are specifically about taking into account the risks to the unborn child during labor when transferring a patient to another hospital,” said Kolbi-Molinas of the ACLU, which also filed an amicus brief in support of the federal government. The fourth mention is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk. “So the hospital couldn’t say, ‘Well, you’re fine, so we’re just going to let your baby die,’” Kolbi-Molinas explained.

Those references are important, according to Huberfeld, because before EMTALA, hospitals were abandoning pregnant people in alarming numbers. “There were so many instances of people in labor being turned away from emergency departments and they and/or their newborns dying,” she said. “It was specifically addressed because the circumstances of patient dumping for people in labor were so egregious.”

For Idaho to suggest that Congress actually meant to shield hospitals from having to address the medical needs of pregnant people in favor of protecting the fetus “is like gaslighting,” Kolbi-Molinas said.

And the argument that state hospitals don’t have to provide emergency abortion care because Idaho regulates the practice of medicine turns EMTALA on its head. Huberfeld thinks the argument is bait meant to attract justices inclined to embrace the notion of state sovereignty. But EMTALA is tied to Medicare funding, she said, which hospitals do not have to accept. If they do, the funds come with strings — including EMTALA’s nondiscrimination guarantee. The law was designed to create “a national standard” because states were routinely discriminating against patients, leaving a patchwork of unequal care, Huberfeld said. “It’s the state variability that predictably leads to worse health outcomes for certain populations.”

Since the fall of Roe, stories of women being denied abortions during medical emergencies have become distressingly common, making clear that the scant exceptions in state bans are not enough to keep pregnant patients safe.

Such cruelty has been on regular display in Texas, including in the case of Amanda Zurawski, who nearly died twice and whose future fertility has been imperiled because of the state’s abortion ban. Zurawski’s water broke early, and the demise of her fetus was inevitable, but because Texas’s ban contained only vague language regarding medical emergencies, doctors said they had to wait until she was on death’s door to provide the abortion she needed.

Zurawski is one of several women who have sued Texas seeking to clarify the ban’s exceptions. The state has resisted, claiming the language is clear and that it’s doctors who are confused. Zurawski and 16 other women also signed on to an amicus brief in the EMTALA case as “living proof of the inadequacy of state law, which endangered rather than protected their lives.”

ERs are “discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”

Meanwhile, Texas has also been fighting the federal government to limit EMTALA’s protections. But instead of being sued by the government, as Idaho was, Texas sued first.

Just three days after HHS posted its 2022 guidance, the state filed suit in the Texas Panhandle, where the case was certain to wind up before a Trump-appointed judge thanks to the quirks of the federal court system. Texas argued that the guidance was a blatant effort to create new law out of whole cloth that would “transform every emergency room in the country into a walk-in abortion clinic.”

The EMTALA guidance was hardly new, the government responded, and did nothing more than reinforce provider obligations under the law as written. Arguing that the case should be thrown out, the government noted that the state’s post-Roe abortion ban had yet to take effect — meaning Texas had no grounds to sue. The state’s wild claims that the government was somehow trying to mandate elective abortions was “a patent misreading of the guidance that bears no resemblance to reality.”

Nonetheless, the federal district court sided with Texas, and the 5th U.S. Circuit Court of Appeals agreed, effectively blocking the full protection of EMTALA in the state. How the Supreme Court rules in the Idaho case could also determine the outcome in Texas.

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Texas was joined in the lawsuit by two groups of anti-abortion doctors who previously filed a federal suit in the Panhandle challenging the Food and Drug Administration’s approval of the abortion drug mifepristone. As in that case, the doctors in the EMTALA lawsuit alleged that the federal government’s guidance might at some point conscript them into participating in an abortion in violation of their conscience. The Supreme Court, which heard oral arguments in the mifepristone case last month, seemed to doubt that the doctors’ dubious claims offered them legal standing to sue.

In the meantime, as Zurawski and others argue in their Idaho case brief, by denying pregnant people EMTALA protections, states with abortion bans are creating the very kind of discriminatory care that the law was meant to eradicate: “Emergency rooms are discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”

While the Idaho Supreme Court has blessed the state’s abortion ban, claiming that it provides wide latitude for doctors to exercise their judgment, the broader political climate in the state is sending a more menacing message, according to the Idaho Coalition for Safe Healthcare.

Lawmakers have tried to insert fetal personhood language into state law and threatened to withhold funding from Boise after city officials said they would not prioritize enforcement of the abortion ban. The state’s attorney general said medical professionals who “assist” in abortion — even by referring someone to out-of-state care — could be prosecuted under the ban. As the number of preventable maternal deaths rose, the state disbanded its Maternal Mortality Review Committee. A group of so-called Freedom Caucus lawmakers penned a threatening letter to hospitals demanding to see abortion records.

A “culture of fear” has settled over the state’s medical professionals, said Dr. Caitlin Gustafson, a family medicine doctor trained in obstetrics and a member of the Idaho coalition. “We have targets on our backs for providing care in the moment that somebody is going to second guess,” she said. “It’s just untenable.”

“We have targets on our backs for providing care.”

Idaho is losing doctors at an alarming rate. Nearly 60 obstetricians stopped providing care in the 15 months following the ban’s imposition, and five of the state’s nine maternal fetal medicine doctors have left the state. Two hospital obstetrics programs have closed, and another is on the brink of closure, because hospitals could not recruit enough doctors to staff them.

Practicing in a rural community, Gustafson feels the weight of the state’s abortion ban, not only as a conflict with her duty to care for pregnant patients, but also for its impact on patients in need of other services. She said she’d just gotten word that another OB-GYN who provided consultation for rural patients was leaving the state, meaning that patients in need of routine services — hysterectomies, for example, or consultation for a “cancer scare” — will be forced to travel hundreds of miles for care. “We’re losing everything,” she said.

Gustafson has always recommended that her pregnant patients in rural areas carry “life flight” insurance in case they need emergency transportation to Boise. Now, she said, doctors across the state are recommending that all pregnant patients carry such insurance in case an emergency arises and they need to be transported out of state. “‘You mean if X, Y, or Z happens, I would have to go to Utah?’” she said patients have asked her. “‘I have two children at home. I have no family there, and I’m going to fly to a city I don’t know, and to doctors I don’t know, and that’s what you’re telling me is my only option?’”

“The level of financial, personal strain and distress this is creating and the inequality by default is tremendous,” Gustafson said. “It feels very unfair.”

Health care providers are trained to intervene in emergencies “to head off the risk of injury, illness, and death,” Huberfeld said, not to “wait until some is on death’s door to help them.” Idaho’s interpretation of EMTALA “is the exact opposite of what the law is supposed to do.”

The post Idaho Goes to the Supreme Court to Argue That Pregnant People Are Second-Class Citizens appeared first on The Intercept.