"Slippery slope": Supreme Court ruling on emergency abortion protocols threatens stark ripple effect

In Idaho, OBGYNs and family medicine doctors live in constant fear that they will have to deny a pregnant patient stabilizing, emergency care.

“Doctors are fearful that they will go to prison if they provide the care that we provided for decades that we know is appropriate,” Dr. Kara Cadwallader, who is a family medicine physician in Idaho, told Salon in a call. “So it's become an untenable ethical dilemma to do pregnancy care anymore and I feel like it's made our state an unsafe place to be pregnant.”

That’s because if stabilizing care requires an abortion, the provider will face two to five years in prison and lose their medical license. The only exception is if the patient is so close to death it’s necessary. Until January 5, 2024, a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA) required hospitals in Idaho that receive federal funding to provide stabilizing care to any patient experiencing an emergency — which could mean ending the pregnancy.

Shortly 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. Now the case has risen to the Supreme Court.

Cadwallader said the crisis is worsening and nearing a tipping point.

“Not only can I not personally provide that health-saving care, but if we need a referral for complicated care, there's fewer and fewer OBGYNs to refer to,” Cadwallader said, adding that more physicians have left the state since January. “I don't know how else to explain it — if we continue to have folks leave, we will no longer have a functional medical system.”

The U.S. Supreme Court will hear oral arguments on Wednesday, April 24, as the second major abortion case to be heard by the court this year. The Court can either rule that EMTALA takes overrides Idaho’s abortion law or it doesn’t.

Azaleea Carlea, legal director at Legal Momentum, a legal defense and education fund for women, told Salon that by undermining EMTALA, Idaho physicians are not clear on what kind of stabilizing treatment they can give to patients.

“They're putting doctors and medical providers in this ridiculous, absurd position of determining whether they're going to comply with state law or whether or whether they're going to comply with federal law,” Carlea said. “We’re looking at this as state-sanctioned discrimination against pregnant patients and we're looking at it as state-sanctioned emotional and physical distress that pregnant patients will have to be subjected to because of how Idaho is interpreting EMTALA.”

If the Supreme Court rules that EMTALA doesn’t preempt Idaho’s abortion ban, legal experts say it could open the door for other states to have abortion laws that override EMTALA, too.

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“This case could radically change how emergency medical care is practiced in this country and could make pregnant people second-class citizens in America's emergency rooms,” Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, told Salon. “What I think we are looking at here is the fact that overturning Roe v. Wade was just the beginning, and these extremist politicians are using every tool at their disposal in their campaign to ban abortion nationwide.”

Notably, EMTALA first came to light as a response to hospitals turning away uninsured pregnant people in active labor. Congress passed the law in 1986 and specifically included provisions mandating federally funded hospitals to accept a patient in active labor even if she doesn’t have insurance. President Ronald Reagan signed it into law. The purpose of EMTALA, Kolbi-Molinas said, was to establish a “national baseline of emergency care” that everyone is entitled to, regardless of where they live or their medical condition. Congress even included a preemption clause that said if any state law conflicts with EMTALA’s requirements, EMTALA overrides the state law.

“Congress inserted that so that they could eliminate this patchwork system of emergency care that we had across the country where people were being turned away and people were being discriminated against for a variety of different reasons,” she said. “It’s difficult to imagine a more direct or greater conflict between EMTALA and a state law than a state law that would prohibit the very emergency care that EMTALA requires.”

In a press conference last week, St. Luke’s chief medical officer shared that after the Supreme Court lifted EMTALA protections in January, six patients had to be airlifted to another state for emergency care compared to only one the entire year before. If the Supreme Court doesn’t uphold EMTALA, it could open the door to create any number of carve-outs to emergency care that could extend beyond pregnant patients.

“It’s a very slippery slope. If this happens it could cause chaos for a lot of marginalized communities,” Carlea said. “It could mean that states get to pick and choose who's going to access emergency care and what that emergency care is going to look like.”

To say that pregnant patients can’t have access to the same emergency care as other patients would be a “very dangerous precedent to set,” Carlea said. “Practitioners are going to be afraid to practice, they're going to be afraid to treat people, they're going to be working under terrible conditions of wondering if they're going to get fined, if they're going to go to jail, if they're going to have to wait for someone to be dying before they can help them.”

Kolbi-Molinas added that any mentions during the oral arguments of doctors objecting to provide emergency abortions due to religious or moral objections is a “red herring.”

“Idaho is threatening to throw doctors who want to provide necessary emergency care to their patients in jail, and that is why the Department of Justice sued Idaho. And that is what this case is about,” she said. “And any suggestion from Idaho or their lawyers that this case somehow has to do with individuals who want to withhold emergency care from their patients is just something that has been manufactured at the 11th hour to try to distract from the real issues in this case.”

Cadwallader said before the case, she wants people to know that this affects everyone — not just pregnant patients in Idaho.

“People have to understand that again, EMTALA protects all Americans in the country and the extremists have made it about abortion and have plucked out pregnant women and said they no longer have rights and that’s bad for America,” Cadwallader said. “It’s bad for all of us, even if you don't have a uterus and can't become pregnant.