On Wednesday, a divided Supreme Court listened to arguments over a state’s abortion ban — its first such hearing since the justices overturned Roe v. Wade. The case, in which the Biden administration is challenging Idaho’s abortion ban, literally puts the health and even the lives of pregnant women on the line.
The administration is arguing that Idaho’s abortion ban should not supersede a 1980s federal law called EMTALA (the Emergency Medical Treatment & Labor Act), which was designed to prevent hospitals from turning away poor or uninsured patients. The law was passed to stem a growing tide of patients being refused treatment. Under EMTALA, hospitals must stabilize someone whose life is at risk, including if it means terminating a pregnancy that puts them in immediate danger.
Saving a pregnant woman’s life sounds like a no-brainer, yet Idaho’s draconian abortion law allows an abortion to be performed only if it prevents the mother’s death, not to protect her health. That puts doctors in the unfathomable position of deciding when a woman has teetered close enough to death that they aren’t breaking the law by treating her. If those doctors are later judged to have been too proactive, they could go to jail.
That has had a chilling effect on women’s health care in Idaho and beyond. Pregnant women have been turned away from hospitals across the country because they aren’t yet far enough over the precipice — maybe their blood pressure is dangerously high, but not yet life-threatening. Maybe they have an infection but don’t show signs of sepsis.
In Idaho, doctors fearful of prosecution are airlifting women to neighboring states. One of Idaho’s hospital systems has reportedly flown six pregnant women to other states since January. Some doctors are recommending that pregnant patients buy insurance that covers emergency air transportation.
Yet several of the conservative justices seemed less worried about the potential for women to die and more concerned about how EMTALA could be used to undermine states’ rights. The discussion sometimes drifted into scenarios that are either extremely unusual or pure fabrications meant to stoke concerns that striking down the law would create loopholes in abortion bans.
For example, U.S. Solicitor General Elizabeth Prelogar had to frequently remind the conservative members of the court that in most of these emergencies, doctors are not making a choice between saving the mom and saving her baby — when a pregnancy takes such a dark turn, the baby is often not going to survive. She also had to remind them that in cases where the baby has a chance of survival, the usual medical advice is to deliver the baby early, not to perform a late-term abortion.
Waiting to treat a woman in crisis could have serious consequences. Waiting to provide care could cause a woman to lose her fertility. She could end up with kidney or neurological damage. She will be doubly traumatized — by the unavoidable loss of an often much-wanted pregnancy and by the completely avoidable experience of being denied care. And if doctors cut it too close, women could die.
As Prelogar succinctly put it, “It just stacks tragedy upon tragedy.”
The impact of laws like Idaho’s extends far beyond the pregnancies where something goes seriously wrong. They encourage doctors to leave the state. A recent analysis of publicly available data by the Idaho Coalition for Safe Healthcare, led by a group of local doctors, found that the state lost 22 percent of its practicing obstetricians in the 15 months after its abortion ban went into effect. Meanwhile, two hospital OB programs have closed, one more is expected to close, and another is at risk of closing, the group said. That has left half of the state’s counties without a practicing obstetrician.
Ruling in favor of Idaho could also affect states where abortion is legal. Health care systems in neighboring states will need to be prepared to absorb their patients. And it could also encourage Catholic hospital networks, which treat one 1 of every 7 patients in the U.S., to use the law to take a tougher stance against terminating pregnancies that threaten the life of the mother.
Lisa Jarvis is a Bloomberg Opinion columnist covering biotech, health care and the pharmaceutical industry.
