Hospitals wary of Supreme Court ruling on abortion and emergency care

The Supreme Court weighed arguments on the ability of doctors to perform an abortion in medical emergencies, but healthcare groups say the case has even broader implications.

The Supreme Court heard arguments on a case centering on the rights of doctors to perform abortions in medical emergencies in Idaho, a state prohibiting virtually all abortions.

Justices listened to arguments on whether federal law, which requires hospitals to stabilize patients in emergencies, supersedes state laws restricting abortion. The case stems from a law in Idaho that prohibits abortion in all cases except to protect the life of the patients, or in cases of rape or incest.

The Biden administration has consistently argued that the federal law requires hospitals to treat those patients, even in states that have laws barring most abortions.

Nonetheless, media outlets including The Washington Post and Associated Press said the court’s conservative judges appeared to express skepticism that federal law requires hospitals to perform abortions in emergencies.

In the wake of the Supreme Court’s ruling that abortion is not a constitutional right, leaving the issue to the states, doctors and hospitals have struggled to determine what care they can deliver. Since the high court’s decision, 21 states have enacted laws restricting abortion. There’s been a sharp increase in complaints from pregnant patients who said they have been turned away by hospitals, an Associated Press investigation found.

Idaho’s law includes harsh penalties for violators, including a minimum of two years in prison and a maximum sentence of five years.

‘Impossible position’

U.S. Solicitor General Elizabeth B. Prelogar aimed to highlight the “devastating consequences” of Idaho’s law.

“Today, doctors in Idaho and the women in Idaho are in an impossible position,” Prelogar said. “If a woman comes to an emergency room facing a grave threat to her health, but she isn't yet facing death, doctors either have to delay treatment and allow her condition to … materially deteriorate, or they're airlifting her out of the state so she can get the emergency care that she needs.”

Prelogar said that the federal Emergency Medical Treatment and Labor Act, also known as EMTALA, doesn’t typically clash with state laws, even in states that have prohibited abortion in most cases. Most of those states offer provisions to protect the mother’s health.

She also talked about the broader ramifications of the case. Prelogar told the judges that EMTALA was designed at least in part to prevent “patient dumping.”

“The idea was we don't want people to have to go somewhere else to get their care,” Prelogar said. “You go to the first emergency room in your state, and they have to treat you and stabilize you. But this effectively allows states to take any particular treatment they don't want their hospitals to provide and dump those patients out of state. And you can imagine what would happen if every state started to take this approach.”

Prelogar also contrasted Idaho’s law, which only makes an exception to save the mother’s life, with the federal law’s provision to prevent catastrophic harm to patients.

“In Idaho, doctors have to shut their eyes to everything except death, whereas, under EMTALA, you're supposed to be thinking about things like, is she about to lose her fertility? Is her uterus going to become incredibly scarred because of the bleeding? Is she about to undergo the possibility of kidney failure? So I think that that is one critical distinction,” Prelogar told the justices.

Joshua Turner, the attorney representing the state of Idaho, faced questions from justices on when doctors could intervene in emergencies. Turner said Idaho’s Supreme Court made clear that “there is no medical certainty requirement” for doctors.

“Idaho law does not require that doctors wait until a patient is on the verge of death,” Turner said. “There is no imminency requirement.”

Turner also told the judges that the Idaho law allows physicians to make a “good-faith medical judgment.”

Yet moments later, Justice Amy Coney Barrett, one of the court’s conservative jurists, posed a question in response: “What if the prosecutor thought differently? What if the prosecutor thought, well, ‘I don't think any good-faith doctor could draw that conclusion.’”

In defending Idaho’s law, Turner pointed out that even federal law doesn’t override a doctor’s own objections of conscience.

“So if EMTALA's stabilization requirement is general enough not to override extra textual protections like conscience protections, then it cannot be so specific and include a requirement that is in direct conflict with state law,” Turner said. “Those two don't jibe.”

Turner also said the court’s ruling on the scope of the federal emergency law carried implications beyond Idaho, or the question of abortion.

“There's just no way to limit this to abortion. And there's no way to limit it to Idaho,” Turner said. “This question is going to come up in state after state after state,” he said.

Justice Samuel Alito focused on language in the federal emergency law relating to physicians protecting “the unborn child.”

“The hospital must stabilize the threat to the unborn child,” Alito said. “And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty.”

Justice Elena Kagan noted that under Idaho’s law, there are a “significant number of cases” where women may not be in life-threatening circumstances, but facing serious health problems where they won’t be able to get care.

“She's going to lose her reproductive organs, she's going to lose the ability to have children in the future, unless an abortion takes place,” Kagan said.

“And yet Idaho says, sorry, no abortion here,” she added. “And the result is that these patients are now helicoptered out of state.”

Chilling effect

Healthcare advocacy groups have implored the court to allow physicians and hospitals to provide necessary care to patients in emergencies, and to defend the federal emergency law.

The American Hospital Association filed a brief supporting the federal government and said the Idaho law “chills” emergency care.

“Hospitals can respond to criminal laws that interfere with the exercise of medical judgment by closing their obstetric departments, but they cannot shutter their emergency departments,” the AHA stated in the brief. “And as hospitals continue to provide 24/7 emergency care to pregnant women, there is strong evidence that the threat of criminal sanctions causes providers to hesitate to provide medically necessary treatment.”

The AHA also pointed out that if a clinician deems to have violated Idaho’s law, the statute requires the clinician’s license to be suspended for six months, and permanently revoked on a second offense.

The American Medical Association has also spoken out in opposition to the Idaho law. Jack Resneck Jr., MD, the former president of the AMA, wrote in an essay this week that Idaho’s law, requiring doctors to act only in life-threatening circumstances, “cannot be applied to the real-life situations faced in emergency departments every day.”

Resneck warned that Idaho’s law has consequences going beyond that state.

“An adverse decision in this case will undermine widely accepted principles of medical ethics by forcing physicians to consider their own legal jeopardy in treating a pregnant patient experiencing a medical emergency,” he wrote.

The American College of Emergency Physicians has argued that doctors should be able to provide the care they deem appropriate, without fear of going to jail.

“Often, emergency physicians must make decisions within minutes, while health, safety, and outcomes hang in the balance,” the ACEP said this year. “In that small window of time, an emergency physician should act in the best interest of the patient, unhindered by concern for the criminalization of their care in the service of the patients.”

Healthcare organizations also noted that patients could suffer if they are refused care, or they opt against seeking medical care for fear of being turned away.

The American Hospital Association stated in its brief, “If the law is allowed to take effect, the consequences of this prosecutorial second-guessing will be severe for clinicians—and, more importantly, for patients.”