On June 27, the Supreme Court “dismissed as improvidently granted” a challenge to the Emergency Medical Treatment and Labor Act’s (EMTALA) protections for emergency abortion care in Idaho v. United States and Moyle v. United States. This means the Court conceded it should not have accepted the case in the first place – a decision that reflects the Court’s failure to reaffirm that emergency abortion care is protected by decades of long-standing federal law.
Even though the case was dismissed, the Court reinstated a lower court ruling that effectively blocks Idaho’s abortion ban to the extent that it conflicts with EMTALA’s protections. This means pregnant patients in Idaho can receive the emergency abortion care they need, for now. There is no guarantee this reassurance will last or even be effective in practice, especially because life and health exceptions to abortion are unworkable in practice. And the court’s decision to dismiss the case just punts the case back to lower courts – where they will hear challenges to EMTALA on the merits – further fueling the chaos and confusion around what protections it offers patients and providers. It is even quite possible that similar cases on EMTALA will be back at the Supreme Court as early as this October.
The Decision Highlights Why Abortion Ban Exceptions Don’t Work
In not actually ruling on the question of whether EMTALA preempts state abortion bans, the Court left in place the uncertainty around whether and when providers in states with abortion bans are allowed to provide care to pregnant people experiencing medical emergencies. (Concurring opinions are not binding precedent, meaning that other courts do not have to follow what they say – but they reveal a lot about how the Justices are thinking about key issues.) Justice Barrett’s concurring opinion, joined by Justice Kavanaugh and Chief Justice Roberts, highlights the truly confusing landscape patients and providers are facing. Justice Barrett makes a point of arguing that both Idaho and the federal government’s positions seemed to have changed during the course of litigation. On the one hand, she says, Idaho’s law seems to allow abortion care in more circumstances than she initially thought. On the other hand, Justice Barrett interprets the government as having argued that EMTALA’s requirements are less burdensome than she originally understood, namely because of federal conscience protections that allow providers to refuse to give care based on their moral and religious beliefs. Whatever else happens, it seems clear that the scope of those conscience protections will be actively contested as this and other cases continue to move through the courts.
But her confusion actually belies a much more important reality – exceptions in abortion bans that ostensibly protect the life or health of the pregnant person are unworkable in practice. They don’t actually correspond to the real circumstances that pregnant people face and do very little to actually enable people to get the abortion care they need when they need it. Justice Jackson connected these threads in her dissent, making it crystal clear that the Court’s decision to dismiss the case put patients and providers in a continuous, dangerous limbo: “…it is strange, to say the least, that this Court would shirk its duty to resolve a pressing legal issue on the basis of representations that defy medical realities,” Jackson writes.
Those medical realities are that access to emergency abortion care has been fraught for not just Idahoans but for others in states with abortion bans. Take, for example, the experiences pregnant people channeled into the Zurawski v. Texas case. This case was brought by plaintiffs who were denied abortion care, and asked the state of Texas to clarify the scope of the “medical emergency” exception under its abortion ban. The Texas Supreme Court held they would not clarify protections under the exception, leaving many physicians unclear on when they can use their own clinical, medical judgment when providing care without risking criminalization.
Providers in states with abortion bans will continue to be undermined in their ability to care for their patients, forced to practice medicine with their hands tied behind their backs. This has compelled providers to leave Idaho and other ban states for states where they will not face criminal liability, leaving pregnant people in Idaho and ban states with even less access to care. In fact, since its abortion ban took effect, Idaho has lost 22% of its practicing obstetricians, and 55% of its high-risk obstetricians. The consequence is pregnant people facing medical emergencies will continue to be forced to wait until they can receive care, putting their future fertility, their health, and their very lives at risk. These patients in dire need of medical care cannot afford delays or denials, and do not deserve to be left limbo like they have for the last two years.
Furthermore, denying pregnant people essential care is especially egregious in light of our country’s ongoing maternal health crisis. EMTALA plays a critical role in ensuring that pregnant people facing emergencies receive the stabilizing care that they need. A potential future decision that EMTALA no longer protects patients experiencing emergency pregnancy complications (at least to the extent there is a conflict with a state abortion ban) could have nationwide implications for access to all obstetric and gynecological care – especially in states with abortion bans. Black and Indigenous women – who currently face high rates of maternal mortality and morbidity – will face disproportionate harm. Denying pregnant patients appropriate medical treatment places them at heightened risk for severe adverse health consequences: in the short term, hemorrhage, infection, and death, and in the long term, loss of fertility, chronic pelvic pain, and heart attack and stroke. This is even more salient for Idahoans, where the state’s infant mortality rose 18% and maternal mortality rose 121.5% from 2019 to 2021 and their task force for investigating pregnancy-related deaths and creating policy solutions to maternal mortality was dissolved last year.
EMTALA’s protections are also particularly important for pregnant patients from communities facing systemic oppression and disinvestment, who often cannot access necessary preventive and/or prenatal care. When people cannot access primary care prior to or adequate prenatal care during pregnancy, they are more likely to develop underlying conditions that make pregnancy more dangerous. For Latinas and Black and Indigenous women, as well as people who live in rural areas or have low incomes, the lack of comprehensive and affordable health care – and systemic barriers and inequities in the healthcare system – already make it challenging to access high-quality health care and increase rates of ER visits. Without adequate federal emergency care protections, patients from communities pushed to the margins and who visit ERs at disproportionate rates will face extreme harm. This outcome from the Court will no doubt have devastating consequences for maternal health outcomes.
The Looming Threat of Fetal Personhood
Although it was not central to deciding this case, Justices Alito and Thomas made it clear in their dissent that they endorse a theory of the law that recognizes fetal personhood. They argue that because EMTALA’s statute contains unborn child language, EMTALA recognizes two patients – the unborn child and the pregnant person – such that the state can require providers to care for them both or even express a preference through abortion bans to prioritize the “unborn child.” Ultimately these Justices claim a fetus should be granted legal rights that run directly contrary to the health and safety of pregnant patients. While this is an ideologically-motivated misreading of EMTALA – which includes this language to protect people in active labor with a healthy fetus – we should also be clear about the strategy. This attempt to embed “fetal personhood” into the law is a dangerous tactic from anti-abortion extremist judges to prioritize the rights of the fetus over pregnant people and to move closer toward the enactment of a national abortion ban.
The Political Strategy Behind the Court’s Decision
Ultimately, it is hard to see the Court’s decision – and especially the votes and concurring opinion of Justices Barrett, Kavanaugh, and Roberts – as anything other than politically-motivated maneuvering. The decision to dismiss the case is likely a strategic tactic to delay an answer on EMTALA’s protections in the face of Idaho’s abortion ban past the November election, where abortion is a key concern for voters. What seems clear is that a conservative majority of the Court wants to permit Idaho to enforce its abortion ban in defiance of EMTALA, but that three members of that conservative block got nervous about the potential political ramifications of such an unpopular decision and backed away.
This political move feels aligned with other decisions from the Court this term – especially in cases like Loper Bright/Relentless and Corner Post, which have unsettled our government institutions – and in cases from previous years which have eroded voting rights and other core tenets of our democracy. It is worth noting that those cases, too, have bearing on our ability to protect and advance reproductive health, rights, and justice.
Conclusion
If this case has demonstrated anything, it is that abortion is essential health care – and, perhaps even more so, that abortion access is and must be a cornerstone of our broader understanding of what it means to create a health care system that works for women at all stages of their lives and health. While the Department of Health and Human Services has reaffirmed their commitment to enforcing EMTALA in the wake of this decision, the Court’s failure to settle the issue will perpetuate a world where the right to essential care is continuously vulnerable to attacks by anti-abortion extremists and ideologically aligned judges and policymakers. We at the National Partnership will continue to fight to preserve abortion access and the autonomy of pregnant people to make their own decisions.
This blog post is an update to an earlier piece authored by Meera, Lawsuits Seek to Weaken Protections for Abortion Access in Emergencies, that discusses the importance of EMTALA and the legal challenges against it.
