Health Law, Policy & Management

Supreme Court Decision on Idaho Abortion Case Adds to ‘Chaos, Confusion’

The 6-3 ruling is a temporary reprieve that will only add to the fear and uncertainty that healthcare providers and patients have been experiencing after Dobbs, says Nicole Huberfeld.

On Thursday, June 27, the US Supreme Court confirmed what it had accidentally revealed in an opinion posted and then deleted from its website 24 hours prior: Medicare-funded hospitals in Idaho must allow “stabilizing” abortion care for pregnant patients whose health is at risk—at least temporarily.

The Court dismissed the highly anticipated case as “improvidently granted,” ruling to send it back to lower courts for further litigation. The decision reinstates a lower court order that blocked Idaho from enforcing its near-total ban on abortion procedures, including when a pregnant patient’s health, but not life, is at risk. 

The 6-3 opinion for the combined cases Idaho v. United States and Moyle v. United States included dissents from Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, as well as a partial dissent from Justice Ketanji Brown Jackson, who criticized the Court’s dismissal of the case on procedural grounds. 

The decision to dismiss the case means that the justices did not address the underlying issue, which is whether a 1986 US law known as the Emergency Medical Treatment and Labor Act (EMTALA) can supersede Idaho’s strict ban on most abortions.

The ruling was hardly seen as a victory by abortion rights supporters, as it only compounds the widespread confusion and uncertainty surrounding complex and ambiguous state-level abortion laws in the two years since the Court overturned Roe v. Wade and ended the federal right to abortion. Idaho is among six states with abortion bans that offer no exceptions to protect the health of pregnant people experiencing medical emergencies—the state law only permits the procedure in reported cases of rape, incest or to prevent the death of the pregnant person. Physicians who violate the state law could receive a penalty of two to five years in prison and lose their license to practice medicine.

“A bullet was dodged for people with medical emergencies for now, but the same kind of litigation is taking place in Texas, where an ongoing lawsuit continues to block EMTALA from being enforced,” says Nicole Huberfeld, Edward R. Utley Professor of Health Law, who has studied this case closely. 

Huberfeld led an amicus brief that was submitted to the Supreme Court this past March ahead of oral arguments for Moyle v. United States. Signed by a team of nine legal scholars, including George Annas, William Fairfield Warren Distinguished Professor, and Elizabeth McCuskey, professor of health law, policy & management, the brief argues in support of an expansive definition of EMTALA, refuting Idaho’s narrower definition and claim (among other arguments) that the statue does not explicitly refer to abortion and so it can’t preempt state abortion law.

But the Supreme Court’s failure to argue the merits of the case is leaving pregnant patients and physicians alike in fear and uncertain of the potential repercussions from needing or providing abortion care.

“One of the biggest difficulties in practicing abortion care post-Dobbs has been the confusion that comes with politicians legislating healthcare,” says SPH alum Kristyn Brandi (SPH’17), an OB/GYN and immediate past chair of the board of directors for Physicians for Reproductive Health.

“Without answering the core question about whether the federal EMTALA rules supersede state abortion bans, physicians remain stuck in a position where we don’t know what to do—exactly what you don’t want when we are facing an emergency situation where someone’s life is on the line,” she says. “It’s not surprising that in Idaho, there are fewer and fewer OB/GYNs because of this law, impacting not just abortion access, but all reproductive healthcare. Without federal legislation soon to protect this and other marginalized care, I worry that more and more providers will be pressured to not provide care or leave their communities.”

This case is also the Supreme Court’s first review of a state abortion ban since Roe was overturned in 2022, and the ruling did little to quell growing public views that the highest court in the nation has become deeply politicized, particularly in a presidential election year.

“The idea that Supreme Court justices make decisions on both the merits of the cases they hear and on the basis of their personal political beliefs is well established in political science research,” says Matthew Motta, assistant professor of health law, policy & management. “What is so important about this case, however, is that it demonstrates that members of the Court may increasingly be allowing politics to determine which cases they choose to hear in the first place.”

Below, Huberfeld discusses the details and next steps of the case and what it means for abortion care in America.

First, what do you make of the inadvertent posting of the opinion? Though it appears to be a technological error, what does this breach in protocol suggest amid growing public distrust of the Supreme Court?  

Huberfeld: The posting appears to have been an error rather than a leak, so I don’t think it’s the same as the Dobbs decision being leaked more than a month in advance. The person who posted prematurely may lose their job. Either way, the posting may feed conspiracy theories about the Dobbs leak, and/or leaks related to abortion cases, regardless of how the Court handles the error. So, I think it could add to the crisis of confidence in the Court.

What are your initial thoughts on the Court’s decision to dismiss this case and send it back to the lower court for further litigation?

Idaho’s Emergency Petition should not have been granted in January, so in that respect I am not surprised that this was the Court’s disposition. Yet, the case was robustly argued, with each side presenting their positions and many amicus briefs to support them, so I don’t think there is much to be gained by delaying a decision—except that patients whose health is endangered can get lawful care in Idaho hospitals. So it is important that the right not be turned away at a hospital’s emergency room remains protected, at least for now. But the Supreme Court did not decide whether states can stop hospitals from caring for patients with medical emergencies that need to be treated by terminating pregnancy. Instead, because the Court held it should not have taken the case, lower federal courts will continue with this litigation, unless the parties decide not to continue to argue the case. 

In the meantime, healthcare providers can provide pregnant patients with emergency medical care. But this is a temporary reprieve, and I believe it will only add to the chaos and confusion that healthcare providers and patients have been experiencing after Dobbs. There is distance between the formal meaning of the law and how the public absorbs that information. 

The dissenting judges argue that EMTALA does not explicitly mention abortion and that it includes the rights of the “unborn” child. Does this reject decades of precedent?

No. Justice Alito’s dissent fabricates an alternative history for EMTALA. For nearly 40 years, EMTALA has created a duty to provide care for any patient’s medical emergency, regardless of whether they can pay, what state they live in, or who they are, if the hospital is paid by Medicare, as nearly all hospitals are. EMTALA requires acting to protect a patient’s health and has no exceptions, because carve-outs could harm patients. Before Dobbs, no state tried to outlaw emergency treatments that follow medical standards of care. 

And, EMTALA’s two key elements left this decision to the treating healthcare provider: First, for any person seeking treatment at a hospital that offers emergency care, the hospital must perform an “appropriate medical screening examination… to determine whether or not an emergency medical condition… exists.” 

Second, if the hospital determines an emergency medical condition exists, it must “stabilize the medical condition” before discharging the patient or transferring to a hospital that can provide needed treatment. An emergency medical condition means “symptoms of sufficient severity… such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual… in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.” 

In other words, Congress chose to enact the law so that the health of the patient is paramount when deciding how to treat a medical emergency, and it rejected a narrower version that would have protected life only.

If a patient is in labor, that is also considered a medical emergency. Contrary to the misstated history in Justice Alito’s dissent, which echoed Idaho’s claims, this rule does not mean that EMTALA does not allow abortions for medical emergencies. Rather, the law instructs hospitals to consider labor a medical emergency because hospitals barred their doors to the uninsured and people of color who were in labor, causing maternal and newborn deaths and injuries. This history is important to understand, because some hospitals claimed EMTALA didn’t require them to provide care for someone in labor, arguing it was not inherently a medical emergency. This history does not mean that Congress did not consider abortions an appropriate response to an emergency for a pregnant patient to protect their health—it was not an issue when EMTALA was enacted or amended, because abortion was constitutionally protected. Before EMTALA, states were aware of patient dumping and did little to stop it, which is why Congress created this national rule, and its purpose was understood and supported by Republicans and Democrats alike.

Judge Ketanji Jackson wrote that the court “squandered” its chance to bring clarity to the scope of EMTALA and whether it supersedes Idaho’s law. Do you worry that these unresolved legal ambiguities may still prevent some physicians from providing emergency abortion care? 

Very much so. Doctors and other healthcare providers are trained to provide evidence-based care that will prevent harm to the extent possible. This means not waiting until a patient is on death’s doorstep. But states with criminal abortion bans that allow exceptions only to prevent death are asking providers not to practice the standard of care and to create known risks for their patients. This creates a conflict between medical training and state law that is not easily navigated. And doctors are threatened with felony prosecution as well as loss of licensure. It’s no wonder they are afraid to act. Further, people worry that if something goes wrong in a criminal abortion state, they will not be treated in a local hospital. Idaho’s airlift experiences show this is a rational concern.

What are the next steps in the legal process for this case?

The Court held it should not have taken the case, so lower federal courts will continue with it. More specifically, the Court restored a lower court’s decision that barred Idaho from enforcing its criminal law banning abortion when it conflicts with EMTALA. This is a fairly narrow gap, as the conflict exists for medical emergencies where the health of the patient is in jeopardy and the medical standard of care would be to terminate pregnancy. If lower federal courts proceed with just this question, then it’s important but fairly narrow. 

On the other hand, if the parties take up Justice Barrett’s suggestion regarding whether spending clause laws are somehow different from other federal laws—also part of Justice Alito’s dissent—then the scope of the litigation will be significantly broader and have even higher stakes. Most of our major social programs rely on Congress’s spending power, and if states are successful in arguing that they do not always need to comply with such laws, then our big federal programs like Medicare, Medicaid, and other social supports may be weakened.