"No real clarity": Supreme Court emergency abortion decision leaving Idaho physicians in the dark

Last week, the Supreme Court dismissed a case brought forth by Idaho that challenged doctors' ability to provide emergency abortions to stabilize a patient’s health and life. As a result, for now, Idaho’s near-total abortion ban does not take precedence over a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA), which is a welcome relief for many doctors on the frontlines. 

“EMTALA, as we previously understood it, is now fully functional in Idaho, so we can provide stabilizing, emergency care to pregnant women if that requires an abortion,” Kara Cadwallader, who is a family medicine physician in Idaho, told Salon in a phone interview. “That was the good news, because it's been pretty awful not having that protection in place.” 

But Cadwallader said, what many others have echoed since the decision, that it would have been better if SCOTUS ruled that EMTALA protects everyone. As far as how long, and if, EMTALA will protect pregnant women in Idaho remains unclear — and there are still many scenarios in which doctors feel as if their hands are tied. 

As Salon has previously reported, Idaho has one of the strictest abortion laws in the nation where abortions are nearly entirely banned except in cases of documented rape or incest, or to prevent the mother's death. Physicians in Idaho have previously told Salon that they live in constant fear that they will have to deny a pregnant patient stabilizing care, since the line of “life-saving” care isn’t always entirely clear in an emergency setting. Patients have regularly been airlifted from Idaho hospitals to other states.

If health-stabilizing care required an abortion, doctors could face two to five years in prison and lose their medical license. In light of the ruling, for now, health and life saving abortions are technically protected under EMTALA since the appeal from Idaho was dismissed as "improvidently granted,” returning it to the lower courts for further litigation. But many view the move as a delay. 

“The ruling was grounded in the procedure that governed how the case came before the Court and they decided not to decide at this time and just returned the case to the lower courts,” Azaleea Carlea, legal director at Legal Momentum told Salon in a phone interview. “Which means that at some point, probably after the election, the Court will hear this issue again.” 

After Roe v. Wade was overturned by the Supreme Court, the U.S. Department of Health and Human Services stated EMTALA took priority over state laws. Under EMTALA, hospitals and emergency rooms were required to provide emergency abortions even where there were strict abortions laws — like Idaho and Texas. The Biden Administration even sued Idaho, claiming that the state's near-total ban was in direct conflict with the federal EMTALA law. But the state claimed that there wasn’t a conflict because technically it has a life-saving exception. Then in January, the Fifth Circuit Court of Appeals in Texas ruled that emergency rooms aren't required to perform life-saving abortions under EMTALA, which then escalated the case to the Supreme Court.

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As Cadwallader said, providers in the state on the frontlines see last week’s decision as welcome relief, but don’t believe the decision provides the much-needed reassurance they hoped could have come out of this decision.  

“This decision to put the case back down to the lower courts does provide some welcome immediate relief for women and their doctors in Idaho,” Susie Keller, CEO of Idaho Medical Association, said at a press conference following the ruling. “But given how much uncertainty there still is in Idaho law, there's still much more work to do to provide that necessary clarity and certainty around protecting the health of pregnant women and to keep physicians practicing in Idaho.” 

One major point of criticism is that the Supreme Court failed to make it clear that EMTALA pre-empts abortion bans like those in Idaho. Carlea said in the opinion of Legal Momentum, the highest court’s decision leaves “a level of chaos and confusion across Idaho and, frankly, across the country.”

A definitive decision from the Supreme Court could have made an impact outside of Idaho, too. As Justice Ketanji Brown Jackson wrote in her dissent, the Court “had a chance to bring clarity and certainty to this tragic situation.” “And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price,” she wrote.

On the ground, doctors are left with a lack of clarity in real-life situations as well. 

“There is no real clarity here, patients and doctors are still in this quandary, in this very nebulous place of as a patient, am I going to receive the necessary medical-emergency treatment that I need?” Carlea said. “It is still not clear, it is still very murky and that's just going to result in more suffering and more discrimination against pregnant patients.” 

In a press conference, Dr. Duncan Harmon, a maternal-fetal medicine specialist at St. Luke’s Health System in Idaho, said there are still many scenarios in which EMTALA might not provide protections for physicians to provide health-saving abortions.

“They have a pregnancy-related condition, which evidence-based medical care would be discussing termination of pregnancy, and those are patients, and we as clinicians must explain to them that even in the lifting of the stay, we cannot provide them evidence-based care in the state,” Harmon said. “And that's where the potential fear in as a clinician exists of criminal prosecution or losing the medical license.”

Cadwallader elaborated and said many pregnancy complications don’t come through the emergency room door as instantly life or health-threatening. 

“Ideally, we would like to treat those before they have severe threats to their health or even their life, we're afraid that if the care we provide causes an abortion and the patient isn't at high-risk for her health or life, then you know we're still facing a jail sentence,” Cadwallader said. “And a lot of the care that is essential to provide comes in that under that category.” 

Cadwallader gave Salon an example of a pregnant patient who has an intrauterine device (IUD). That hypothetical patient would be at high risk for an infection, but taking the IUD out could disrupt the pregnancy.

“Even if you know she's trying to continue the pregnancy, that could be perceived as causing an abortion, and that would put me at risk for criminal penalties,” Cadwallader said. “Even though we have some security around severe pregnancy complications, the vast majority of them we don't have any clarity.”

Still, physicians are facing the same dilemma as before. 

“You have to err on the side of anything that might cause an abortion in that setting, is we're looking at our career versus going to jail,” Cadwallader said. 

Cadwallader added that issues like OBGYNs leaving the state and patients being airlifted to out-of-state hospitals will remain. 

“I think we're going to see the transfers continue to happen,” she said. “I think we're going to continue to lose OBGYNs and other doctors in our state.”