Appeals court considers next step for emergency abortion care in Idaho

BOISE (Idaho Capital Sun) — An 11-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Tuesday in a case that will determine whether doctors can perform emergency abortion care without criminal prosecution in Idaho, a state with a near-total abortion ban.

The U.S. Department of Justice sued Idaho in 2022 to block it from enforcing its criminal abortion ban for emergency room physicians who might need to perform an abortion when a patient is at risk of infection or other potentially serious health problems during pregnancy.

The Justice Department said prosecuting physicians under those circumstances would violate the federal Emergency Medical Treatment and Labor Act, or EMTALA, which requires Medicare-funded hospitals to treat patients who come to an emergency room regardless of their ability to pay.

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Idaho’s ban contains an exception to save the pregnant patient’s life, but not to prevent detrimental health outcomes, including the loss of future fertility, which is a risk with severe infection or bleeding. Without further clarity written into the law, doctors have said they can’t confidently assess when to safely intervene to save someone’s life and what constitutes a “good faith” judgment.

Rather than take the chance, high-risk obstetric specialists have airlifted patients to a facility out of state that can freely perform the procedure before it becomes a life-threatening situation. In 2023, officials at St. Luke’s, the state’s largest hospital system, said at their facilities such transfers happened once. But between January and April, when the U.S. Supreme Court decided to take up the case and lifted an injunction blocking the ban’s enforcement in cases of emergency care, six patients were transferred.

‘It’s not a statute about emergency care,’ attorney for Idaho Legislature argues

Idaho’s attorneys have argued that the federal EMTALA law does not supersede state law banning abortions, and says it does call for stabilizing treatment to be given to an “unborn child.” They also contend that the situations physicians have described where an abortion might be necessary as a stabilizing treatment would qualify under Idaho’s exception to save the person’s life.

John Bursch, an attorney with the conservative legal group Alliance Defending Freedom, argued the case on behalf of Idaho, and attorney Taylor Meehan represented the Legislature to defend the law.

Judge Salvador Mendoza Jr., who was appointed by President Joe Biden, asked Meehan if there had been any changes to Idaho law that would clarify the emergency situations where abortion care would be acceptable, and a physician would not be subject to prosecution. Meehan said no.

“The more you put in the statute, the more you start to limit the physician’s good faith belief,” Meehan said.

Mendoza asked how doctors are supposed to know their actions won’t be subject to prosecution if it’s not specific in the law, and Meehan said it wasn’t meant to address those situations.

“It’s not a statute about emergency care, it’s a statute that primarily prohibits elective criminal abortions. It’s not about medical treatment,” Meehan said.

Judge Lawrence VanDyke, an appointee during President-elect Donald Trump’s first term, cast doubt on the necessity of the six air transfers that occurred while the injunction was not in place. VanDyke asked attorney Lindsay Harrison, who represented St. Luke’s Health System of Idaho, why those six were sent out of state. Harrison said five of them had premature rupture of membranes and one had preeclampsia, a dangerous condition of high blood pressure.

“Your argument is, if the mother wants to kill the baby even though it’s not necessary to prevent (death), then they have to be airlifted, is that right?” VanDyke said.

Harrison said the issue is that a physician can’t immediately determine whether a pregnant patient’s life is at risk as a result of the condition, so they are sent to a place where abortion is legal, and the full spectrum of care options is available.

Circuit panel will likely issue opinion sometime in the next few months

Tuesday’s appellate court hearing came six months after U.S. Supreme Court justices decided over the summer it was too early for them to make a determination and returned the case to the lower court. But it began in 2022, shortly after the U.S. Supreme Court’s Dobbs decision that overturned Roe v. Wade and returned regulation of abortion procedures to the states.

The number of appellate judges in the case was higher than usual because it is under consideration as an “en banc” case. A three-judge panel initially decided to strike down the preliminary injunction from Idaho’s district court, leaving emergency room physicians open to prosecution under the ban.

The 9th Circuit does not have to issue an opinion in a specific time frame, although it will likely rule within the next few months.

The panel could decide to leave the injunction in place or vacate it and return the case to district court in either ruling. The case could also be dropped entirely in January after Trump is sworn in and new leadership takes over the Department of Justice. In that instance, a new plaintiff would have to start the entire case over from scratch.

The en banc panel included Chief Judge Mary Murguia, who was appointed by former Democratic President Barack Obama, as well as one other Obama appointee, two who were appointed by Biden, four appointed by Trump during his first term, two appointed by former Republican President George W. Bush, and one appointed by former Democratic President Bill Clinton.

Idaho Capital Sun is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Idaho Capital Sun maintains editorial independence. Contact Editor Christina Lords for questions: info@idahocapitalsun.com.