U.S. Supreme Court’s Decision on Emergency Abortions Raises More Questions than Answers

Will decision change practice?

The big question for OB/GYNs, emergency department (ED) physicians, and the reproductive healthcare community is whether the U.S. Supreme Court’s decision on June 27, 2024, in the case of Idaho and Moyle v. United States, will change emergency care for pregnant women in the United States.

The Supreme Court’s 6-3 ruling reinstates a lower court’s decision to allow hospitals in Idaho to perform emergency abortions both to save a woman’s life and to protect her health. The District Court allowed women in Idaho to receive emergency abortions. But when Idaho sought to get the injunction lifted, filing an emergency application to the Supreme Court, the court stayed the injunction and sided with Idaho.^1,2

The decision applies to Idaho. It does not mean that all hospitals in all states have to do the same thing under the federal government’s Emergency Medical Treatment and Labor Act (EMTALA) for hospitals receiving Medicare funding.¹

The opinion dismissed Idaho’s case as “improvidently granted.” It is going back to the lower courts for further litigation.^1,2

“This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme,” wrote Justice Ketanji Brown Jackson in a concurring opinion.¹

Justice Elena Kagen wrote for herself and the three liberal justices that the District Court’s preliminary injunction will again take effect, and Idaho cannot enforce its abortion ban when a patient needs to end the pregnancy to prevent serious health harm. “For example, when a woman comes to an emergency room with PPROM, the serious risk she faces may not be of death but of damage to her uterus, preventing her from having children in the future,” Kagan wrote. (PPROM stands for preterm premature rupture of membranes.) “That is why hospitals in Idaho have had to airlift medically fragile women to other States to receive abortions needed to prevent serious harms to their health.”¹

Justice Amy Coney Barrett wrote a concurring opinion, acknowledging the dispute over whether EMTALA requires hospitals to perform abortions or any other treatment forbidden by state law as necessary stabilizing care.

Barrett noted that the federal government clarified that stabilizing treatment for mental health conditions does not require an abortion and that both hospitals and individuals could abstain from providing abortion care because of conscience protections.¹

“I therefore agree that we should dismiss the writ of certiorari as improvidently granted and permit proceedings to run their course in the courts below,” Barrett wrote. “I also agree that we should vacate the stay.”¹

Kagan addressed the bigger picture in saying, “The statute simply requires the hospital to offer the treatment necessary to prevent the emergency condition from spiraling downward. And, on rare occasions, that means providing an abortion.”¹

The Supreme Court decision on EMTALA, similar to its decision on mifepristone, falls short of giving a final answer on whether the federal law holds precedent over state abortion bans.

Hospitals in Idaho may decide they no longer have to send women by helicopter out of state for emergency abortions. But the question remains about what will happen to women in other states where abortion is banned, including Texas, where a similar EMTALA challenge had a different outcome in federal court.

The court’s decision is mostly positive, says Glenn Goodwin, DO, research director of transitional year residency at Aventura Hospital and Medical Center in Miami, FL. Goodwin also is part of the clinical faculty in pediatric emergency medicine at Children’s Hospital Palms West in Palm Beach, FL.

“I could not imagine that the Supreme Court would allow state law to supersede EMTALA — that’s never been done before,” Goodwin says.

In a dissenting opinion, Justice Samuel Alito disagreed. “The Government’s preemption theory is plainly unsound,” he wrote. “Far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her ‘unborn child.’”¹

Since Alito’s dissent on June 27, 2024, could become a court decision against EMTALA in the future, will emergency medical care really change in abortion-ban states? Or will hospitals continue to be overly cautious and make women wait much longer to receive care than they would have received in a state without abortion bans?

Women in abortion-ban states already have filed lawsuits and made public reports of the inadequate emergency care they have received when experiencing pregnancy health crises, including miscarriages, fetuses with fatal anomalies, and even emergency situations involving sepsis, hypertension, and other life- and health-threatening conditions.

In Idaho, which filed the lawsuit challenging EMTALA and took the challenge to the Supreme Court, doctors have told pregnant women to buy transportation insurance because some women have already been helicoptered out of state to receive emergency abortion care that could easily have been provided in the ED where they first arrived.

“After today, there will be a few months — maybe a few years — during which doctors may no longer need to airlift pregnant patients out of Idaho,” Jackson wrote. “But having not heard from this Court on the ultimate pre-emption issue, Idaho’s doctors will still have to decide whether to provide emergency medical care in the midst of highly charged legal circumstances with no guarantee that this fragile detente over the State’s categorical prohibitions will be maintained.”¹

The continuation of an uncertain legal environment about emergency abortion care will harm pregnant patients.

“We have [seen] maternal deaths that happened when people were transported from [an ED] and did not receive maternal care,” says Carly M. Dahl, MD, a fellow in the division of maternal fetal medicine at the University of Utah in Salt Lake City. Utah is a state that is receiving emergency patients from abortion-ban states. Dahl says she was speaking from her own perspective and not about any particular incident that occurred in her own hospital, where pregnant patients have continued to receive emergency medical care without medically unnecessary delays.

“Most high-risk pregnancy doctors you talk to nationally would confirm that they have seen a case of a woman being flown out of state and dying in the state where they sought care,” she explains.

“Those cases are, fortunately, very rare, but they will become more frequent,” Dahl says.

When someone is turned away for maternity care while they are experiencing a pregnancy crisis, such as a miscarriage, they may need abortion care but are unable to obtain one in states and/or hospitals that prohibit abortions.

“There is so much stigma about receiving abortion care that people are often not talking about these experiences because they went through so much to receive the care they got,” Dahl says. “We’re trying to make sure that, even if patients can’t receive care once they need it, they know about that before they become pregnant. We all adapt in the way we provide care.”

Lawsuits by women experiencing harm during pregnancy, as well as the lawsuits over EMTALA, have brought up the question of how any court or lawyer can decide if a pregnant woman has suffered enough harm to warrant abortion medical care.

As Supreme Court Justice Sonia Sotomayor asked during the hearing about emergency abortion care and EMTALA, when is a pregnant woman close enough to death to be offered standard medical treatment?

“You have a pregnant woman — a woman who is early into her second trimester at 16 weeks, goes into the ER because she felt a gush of fluid leave her body. She was diagnosed with PPROM. Doctors believe that a medical intervention to terminate the pregnancy is needed to reduce the real possibility of experiencing sepsis and uncontrolled hemorrhage from the broken sac,” Sotomayor said.³

“This is a story of a real woman. She was discharged in Florida because the fetus still had fetal tones, and the hospital said she’s not likely to die, but there are going to be serious medical complications. The doctors there refused to treat because they couldn’t say she would die. She was horrified, went home. The next day, she bled. She passed out. Thankfully taken to the hospital. There, she received an abortion because she was about to die,” she added.³

“The people with the most disadvantages are the ones experiencing higher rates of maternal morbidity and mortality,” Dahl says.

What morbidity and mortality data about pregnancies do not capture is how many pregnant people suffered huge financial loss because they could not receive emergency pregnancy care in their own town. Data are lacking on how many patients might have died or came close to losing an organ because of delayed emergency care, she notes. “These are [crises] that could have gone in a different direction,” Dahl says.

It is possible there will be fewer of these tragedies now that the EMTALA question has been settled by the nation’s highest court.

States like Idaho and Texas say practitioners cannot perform an abortion unless the pregnant woman is going to die without one. But other states like Florida also have made it difficult for pregnant women to receive life- and health-preserving medical care, and this was true even when the Florida only had a 15-week abortion ban in place.⁴

If hospitals continue to delay emergency treatment of pregnant women out of legal concerns, the Supreme Court’s decision at least provides them with another legal avenue. They can sue under EMTALA.

But this does not always work, as Jaci Statton discovered when she filed a complaint with the U.S. Department of Health and Human Services under EMTALA. Her complaint came about a year after President Joe Biden’s administration said that hospitals must provide abortion services if the patient’s life and health were at risk, and that EMTALA supersedes state abortion bans that do not have adequate protection in the event of medical emergencies.^5,6

Statton experienced severe pain and nausea early in her pregnancy in 2023. Her physicians told her she had a partial molar pregnancy, and it could cause hemorrhaging, infection, and death if left untreated. But they said they could not provide her with the standard treatment of an abortion unless she was dying or on the verge of a heart attack. So, they suggested she sit in the parking lot to be close to the hospital when her condition deteriorated.^5,6

The Center for Reproductive Rights filed a complaint for Statton, arguing that by denying Statton abortion care, the Oklahoma hospital violated EMTALA’s mandate that hospitals conduct an examination to determine whether a medical emergency exists and to provide treatment to stabilize the medical condition or to transfer the person to another medical facility after the patient is stabilized.⁶

The Centers for Medicare and Medicaid Services (CMS) told Statton that they could not confirm a violation of the emergency care federal law and denied her complaint.⁵

Statton finally received abortion care in Kansas, after a long drive and a two-day wait. Because of the trauma she experienced, the 26-year-old decided to have tubal ligation to prevent future pregnancies.⁶

Shortly after the Supreme Court’s decision on EMTALA and emergency abortions, the Biden administration sent a letter to emergency department physicians, telling them they have a legal duty to offer abortions to pregnant patients if these are necessary for stabilizing treatment.⁷ It is uncertain whether this letter will change the way hospitals and physicians handle pregnancy emergencies in abortion-ban states. Even after the administration first clarified EMTALA’s mandate, in July 2022, explicitly saying it covered emergency abortion care, there still were reports across the country of pregnant patients being turned away or delayed in receiving abortion care and having major health problems as a result.

REFERENCES

1. Mike Moyle v. United States and Idaho v. United States. Supreme Court of the United States. Opinion. June 27, 2024. https://www.supremecourt.gov/opinions/23pdf/23-726_6jgm.pdf
2. Totenberg N. Supreme Court allows Idaho to offer emergency medical abortions. NPR. June 27, 2024. https://www.npr.org/2024/06/13/nx-s1-5005422/supreme-court-emtala
3. Mike Moyle v. United States and Idaho v. United States. Supreme Court of the United States. April 24, 2024. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-726_6jf7.pdf
4. Jackson S. Two women bonded over miscarriages, one almost died after being turned away by Florida doctors as result of 15-week abortion ban. Black Enterprise. April 11, 2023. https://www.blackenterprise.com/two-women-bonded-over-miscarriages-one-almost-died-after-being-turned-away-by-florida-doctors-as-result-of-15-week-abortion-ban/
5. U.S. government rejects complaint that woman was improperly denied an emergency abortion in Oklahoma. NBC News/Associated Press. Jan. 20, 2024. https://www.nbcnews.com/news/us-news/us-government-rejects-complaint-woman-was-improperly-denied-emergency-rcna134877
6. Complaint against Oklahoma hospital for denying life-saving abortion care. Media release. Center for Reproductive Rights. Updated on Oct. 5, 2023. https://reproductiverights.org/case/emergency-exceptions-abortion-bans-idaho-tennessee-oklahoma/emtala-complaint-oklahoma-hospital/
7. 7.Seitz A. In wake of Supreme Court ruling, Biden administration tells doctors to provide emergency abortions. Associated Press. July 2, 2024. https://apnews.com/article/abortion-emergency-room-law-biden-supreme-court-1564fa3f72268114e65f78848c47402b