Can the Supreme Court Provide Clarity on Abortion in Life-Threatening Cases?

Much of the debate surrounding Moyle v. United States—a Supreme Court case that will be heard on Wednesday involving abortion in cases of medical emergencies—is confusing and misleading.

For example, see this April 9 headline of a Vox article: “​​The Supreme Court will decide if states can ban lifesaving abortions.” Although Vox is an openly progressive publication, that characterization of the case isn’t far off from the headlines you will read at mainstream outlets such as the Associated Press.

At first glance, headlines about whether the Supreme Court will rule on whether states can ban abortions in medical emergencies seem plausible: The Biden administration sued the state of Idaho on the grounds that a 1986 law, the Emergency Medical Treatment & Labor Act (EMTALA), requires hospitals receiving Medicare funding to perform abortions in certain circumstances, and the state of Idaho is indeed fighting the government’s interpretation of the law in court. But what is lost in most media coverage of the case—what makes so many headlines misleading or simply false—is the omission of the crucial fact that the state of Idaho also is arguing that the life-of-the-mother exception in the state’s abortion ban already covers every example cited in the federal government’s Supreme Court brief of a medical emergency that could require the termination of a pregnancy.

The U.S. government’s brief cites several examples of emergency medical conditions that a pregnant woman can experience before her unborn child is capable of surviving outside of the womb:

• rupture of the amniotic sac (“preterm premature rupture of the membranes”), which can result in infection, sepsis, or organ failure; 
• “placental abruption,” which can result in “uncontrollable bleeding” or “organ disfunction”; 
• “uncontrollable uterine hemorrhage,” which can “requir[e] hysterectomy” or result in “kidney failure requiring lifelong dialysis”; and 
• “preeclampsia,” which can result in the “onset of seizures” or “hypoxic brain injury.” 

John Bursch, senior counsel at the Alliance Defending Freedom (ADF) and co-counsel to the state of Idaho in this case, told The Dispatch in a phone interview: “Every single instance in the United States brief where they describe a scenario, the woman’s life is at risk” and is thus covered by the state’s exception.

The state of Idaho’s brief replying to the federal government says (citations omitted): 

Treatments for ectopic and molar pregnancies are not abortions under Idaho law. And conditions like preeclampsia, eclampsia, and HELLP Syndrome are “life-threatening situation[s]” for which Idaho law allows “life-saving surgery” or “early delivery.” The same is true for sepsis; and for severe heart failure—though in that instance, immediately terminating the pregnancy could be “the worst first thing to do for the sake of the health of the mother.” Life-saving treatment or a C-section are also permitted for placental abruption. So too for a pregnant woman whose water breaks before her child is viable because Idaho’s life-of-the-mother exception would apply. This is why the [9th Circuit Court of Appeals] stay panel below had no trouble concluding that every circumstance described by the administration’s declarations involved life-threatening circumstances under which Idaho law would allow an abortion.

Despite the fact that the state of Idaho is explicitly arguing before the Supreme Court that treatment for such conditions is allowed by the abortion law’s exception, some hospitals have delayed treatment in life-threatening circumstances. For example, in an amicus brief supporting the federal government, the largest hospital network in Idaho reports that due to “the legal uncertainty surrounding” the state’s abortion law, patients with pre-viable premature rupture of amniotic membranes “are now being transferred out of state unless they are at imminent risk of death.” 

Bursch points to a 2023 ruling by the Idaho Supreme Court that should have removed any fear that hospitals might need to wait to provide treatment until a threat was imminent. That 2023 ruling held that the plain language of the abortion statute “leaves wide room for the physician’s ‘good faith medical judgment’ on whether the abortion was ‘necessary to prevent the death of the pregnant woman’ based on those facts known to the physician at that time. This is clearly a subjective standard, focusing on the particular physician’s judgment. Contrary to Petitioners’ arguments, the statute does not require objective certainty, or a particular level of immediacy, before the abortion can be ‘necessary’ to save the woman’s life.”

Since the Dobbs v. Jackson Women’s Health Organization ruling in June 2022 overturned Roe v. Wade, national pro-life groups have urged state officials across the country—including health departments, medical boards, and attorneys general—to formally provide such clarifying guidance to hospitals about what abortion law exceptions permit to protect the life of the mother. Bursch is unaware of any formal guidance issued by Idaho agencies about the aforementioned medical emergencies, but he said the Idaho Supreme Court ruling “was a pretty big deal” that should have resolved any questions about what was allowed.

So where exactly is the disagreement between the federal government and the state of Idaho? In key respects, they’re disputing what they even disagree about. 

The state of Idaho argues that the Biden administration is trying to stretch EMTALA into a broad mental-health loophole for abortions. “We wouldn’t even be in court, except for the administration’s hope that you can somehow broaden this into something much bigger … into something where the mental-health exception kicks in and it becomes abortion on demand in emergency rooms,” said Bursch. The Biden administration disputes that argument in its Supreme Court brief: “Idaho badly errs in asserting that construing EMTALA according to its terms would turn ‘emergency rooms into federal abortion enclaves’ by allowing pregnancy termination for ‘mental health’ concerns. Idaho neither identifies a single case where an emergency-room physician terminated a pregnancy to stabilize a mental-health condition, nor cites any clinical standard identifying termination as necessary stabilizing care in such circumstances.” Bursch counters by arguing that “mental health is an emergency medical condition that fully falls within the EMTALA framework” and that if a pregnant woman showed up at an emergency room threatening suicide she could get an abortion for that reason under the Biden administration’s regulations. The definition of health under Roe’s post-viability health exception notably included mental health, and some states do explicitly allow post-viability abortions for reasons of mental health.

Bursch concedes there is, at least theoretically, a conflict between the state law’s exception allowing an abortion only when “necessary to prevent the death of the pregnant woman” and the Biden administration’s claim that EMTALA requires abortion when a pregnant woman’s physical health—but not her life—is threatened. But, Bursch adds, the Biden administration has not actually cited any such health condition that would not be covered by the state’s life-of-the-mother exception. “There is some [difference] between health risk and life risk, but the government hasn’t come forward with any examples where that’s been implicated,” Bursch said.

Many state abortion laws’ exceptions go beyond protecting the life of the mother to also cover cases where there is risk to a major bodily function. But Dr. Ingrid Skop, an obstetrician-gynecologist, tells The Dispatch that any condition that threatens a bodily function should also fall under an exception to save the life of the mother. “Anything that’s serious enough to destroy [a pregnant woman’s] kidneys is also serious enough to potentially kill her,” she said. Skop, who serves as vice president and director of medical affairs for the Charlotte Lozier Institute, co-authored a paper for the pro-life think-tank in July 2022 that argued all state abortion laws allow doctors to treat serious threats to the mother under long-standing practice guidelines issued by the American College of Obstetricians and Gynecologists.

If there is daylight between the federal government and the state of Idaho on when abortion is allowed, which side wins out? The Biden administration points to EMTALA’s provision that the federal law preempts state law “to the extent that the [state law] directly conflicts with a requirement of this section.” As explained above, the state of Idaho argues there is no direct conflict over the medical emergencies mentioned in the federal government’s brief because treatments for those conditions are allowed under the life-of-the-mother exception in Idaho’s law. But where there may be daylight, the state of Idaho argues that state law prevails because another provision in federal law that says nothing in the Medicare Act (to which EMTALA is an amendment) authorizes “any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.” 

EMTALA’s “only purpose was to make sure that people got care,” Bursch said. “It doesn’t direct how care should be provided. … We rely on other federal and state limitations to put the boundaries on those types of things.” For example, Idaho argues that EMTALA cannot require emergency-room doctors to prescribe a drug illegal under state law even if an emergency-room doctor determines that drug would stabilize an emergency medical condition. In a similar way, an emergency-room doctor could not hypothetically violate a state law prohibiting organ-harvesting if a doctor concluded that an organ transplant was the only way to stabilize a patient experiencing an emergency medical condition. 

The federal government argues in its Supreme Court brief that if Idaho’s interpretation of EMTALA is correct, then “Idaho or any other State could criminalize pregnancy termination under any or all circumstances, and EMTALA would never require that care. A State could ban termination of ectopic pregnancies.” Bursch counters by pointing out that no state law bans treatment of ectopic pregnancies, and he suggests that such a hypothetical ban would be unconstitutional under a rational-basis test. Justice Brett Kavanaugh noted in his Dobbs concurrence: “In his dissent in Roe, Justice Rehnquist indicated that an exception to a State’s restriction on abortion would be constitutionally required when an abortion is necessary to save the life of the mother. […] Abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother.”

“When you’re talking about an ectopic pregnancy—where it’s impossible for the baby to survive—and allowing it to continue to develop in the fallopian tube is going to cause massive harm and likely death to the mother—that wouldn’t survive that basic rational-basis test if state would ever try to do that, which is why no state in the union has ever passed a law like that or is likely to do that,” Bursch said. “But EMTALA doesn’t speak to that.”

Is there any way for the Supreme Court to rule in favor of Idaho without adding to the confusion about whether state abortion laws protect the life of the mother? Bursch says the Supreme Court could explain that Idaho law, as interpreted by the state’s Supreme Court, does not require a threat to be imminent and allows doctors to exercise good-faith medical judgment in all of the kinds of medical emergencies discussed by the federal government and the state of Idaho in their briefs. “That would be wholly within their power,” he said.