In June, amidst the flurry of final decisions of the term, the U.S. Supreme Court issued decisions in the two most consequential abortion cases since the landmark Dobbs decision overturned Roe v. Wade two years ago.

On June 13, SCOTUS unanimously rejected doctors’ standing in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, not even getting to the merits. This ruling for now preserves broad access to the chemical abortion drug mifepristone and the FDA’s related regulatory decisions. (See Council for Life News HERE)

On June 27, the High Court issued its opinion in State of Idaho v. United States of America. SCOTUS again did not rule on the merits, but instead remanded the case to the U.S. Court of Appeals for the Ninth Circuit for further consideration.

At issue in the Idaho case is whether the Federal Emergency Medical Treatment and Active Labor Act (EMTALA) preempts Idaho’s state abortion ban, the Defense of Life Act, therefore requiring Medicare funded hospitals to perform abortions under certain circumstances that the Idaho Act would forbid. EMTALA requires requires emergency room doctors to “stabilize” a pregnant woman’s “emergency medical condition” even if her life is not in danger. Idaho’s abortion ban has a narrower exception that only permits doctors to perform abortions to save the life of the mother. 

EMTALA

EMTALA was passed by the U.S. Congress and signed into law by President Ronald Reagan in 1986 to ensure that emergency rooms provide care to patients in critical need of medical care who are uninsured or otherwise unable to pay. Importantly, EMTALA explicitly requires hospitals to provide treatment to stabilize emergency medical conditions for everyone, including both a pregnant mother and — significantly — her “unborn child”.

EMTALA specifically references the “unborn child” four times and never references “abortion”.

EMTALA does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”

Shortly after the Dobbs decision, the U.S. Department of Health and Human Services (HHS) issued a July 2022 Guidance with an accompanying Letter from HHS Secretary Xavier Becerra to healthcare providers that receive federal funds declaring that EMTALA mandates their performance of some elective abortions:

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.” 

Idaho’s Defense of Life Act

In 2020, Idaho passed the Defense of Life Act to protect the lives of women and their unborn children, preventing doctors from performing abortions unless, in their “good faith medical judgment”, an abortion is “necessary to prevent the death of the pregnant woman.” 

After SCOTUS overturned Roe in 2022, Idaho’s Defense of Life Act was allowed to go into effect. The U.S. Department of Justice immediately sued the State of Idaho, alleging EMTALA usurped Idaho’s abortion ban and forced emergency room doctors to perform abortions even in situations when a pregnant woman’s life is not threatened.

In a parallel case similar to the Idaho case, State of Texas v. Becerra, Texas challenged the July 2022 Guidance issued by HHS declaring that EMTALA mandates the performance of some elective abortions. The U.S. Court of Appeals for the Fifth Circuit ruled that EMTALA does not preempt the abortion restrictions under Texas law— The Texas Human Life Protection Act. In April, the U.S. Government appealed the Fifth Circuit decision in State of Texas v. Becerra, but SCOTUS has not yet indicated whether to review the Fifth Circuit’s judgment.

Timeline of Idaho v. U.S. 

  • August 2022: The U.S. Government filed suit against the State of Idaho seeking to override Idaho’s Defense of Life Act asserting it was in violation of EMTALA. A Federal District Court issued a preliminary injunction, temporarily preventing Idaho from enforcing its abortion ban in emergency room settings. 
  • May 2023: The District Court denied Idaho’s motion for reconsideration.
  • October 2023: A three-judge panel of the U.S Court of Appeals for the Ninth Circuit unanimously agreed to allow Idaho to enforce its abortion ban law.
  • November 2023: An en banc Ninth Circuit panel reversed the three-judge panel decision preventing Idaho from enforcing its abortion ban law. Idaho Attorney General Raúl Labrador  immediately filed an Emergency Application to the U.S. Supreme Court.
  • January 2024: The U.S. Supreme Court agreed to hear the case prior to the Ninth Circuit rendering judgment and stayed the District Court’s injunction which allowed Idaho to enforce its abortion ban law as the litigation continued. 
  • April 2024: SCOTUS heard oral arguments in the case. (See Council for Life News HERE)
  • June 2024: The High Court declined to rule on the merits of the case and sent the case back to the Ninth Circuit for further consideration.

In a 6-3 ruling with separate writings and reasoning, SCOTUS did not resolve the case on its merits, but instead dismissed the case as “improvidently” — that is, mistakenly — granted. The Court vacated its stay, effectively reinstating the District Court’s injunction that prevented the enforcement of Idaho’s abortion ban in emergency room settings.

An unsigned version of the ruling was inadvertently posted to the Court’s website on June 26, the day before the formal issuance of the opinion. This was the second unintended early release of a major abortion decision by the Court since the Dobbs decision was leaked.

The Supreme Court sent the Idaho case back to the San Francisco-based Ninth Circuit for further consideration. 

Justice Amy Coney Barrett—

In her concurring opinion, Justice Amy Coney Barrett was joined by Chief Justice John Roberts and Justice Brett Kavanaugh. Justice Barrett initially emphasized that the “shape” of this case had “substantially shifted” since January when the Court agreed to stay the District Court injunction and hear the case. Justice Barrett later asserted that the High Court took the Idaho case too early in the process and to resolve the substance of the case in an expedited manner was “no longer appropriate.” 

U.S. Government Concessions

She focused on “important” and “critical” concessions made by the United States in briefs and during oral arguments since January. 

  • First, the Government’s reading of EMTALA “that an abortion is never required as stabilizing treatment for mental health conditions” but rather is “restricted to conditions posing serious jeopardy to a woman’s physical health…does not gut Idaho’s Act.”
  • Second, “the United States clarified that federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context.” Therefore, the Federal Government’s attorneys conceded that healthcare providers cannot be coerced to perform abortions against their conscience.

Material Changes in Idaho Law

She highlighted clarifying construction by the Idaho Supreme Court in January 2023 and material changes by the Idaho Legislature to the Defense of Life Act effective July 1, 2023, after the District Court entered the preliminary injunction. The Act does not require “objective certainty” or “immediacy” before the abortion can be “necessary” to save the woman’s life, consider treating an ectopic pregnancy by removing the fetus as an “abortion”, or consider an abortion “criminal” if the physician determined in “good faith medical judgment” that the abortion was necessary to save the life of the mother. (See Idaho Defense of Life Act Amendments effective July 1, 2023 HERE)

Enforcement of Idaho Law in “Vast Majority of Circumstances”

In noting the “dramatic narrowing of the dispute,” Justice Barrett concluded: “Idaho’s ability to enforce its law remains almost entirely intact.”

Justice Ketanji Brown Jackson—

Justice Ketanji Brown Jackson, concurring in part and dissenting in part, read a summary of her opinion aloud to emphasize her position that the Court should have decided on the merits: “While this Court dawdles and the country waits, pregnant people experiencing emergency conditions remain in a precarious position. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”

Justice Samuel Alito—

Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented. Justice Alito asserted that EMTALA requires hospitals receiving Medicare funding “to treat, not abort, an unborn child.“ He wrote: “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.” 

EMTALA Likely to Return to SCOTUS in Upcoming Term

For now, EMTALA preempts Idaho’s abortion ban, requiring Idaho emergency room doctors to perform abortions in circumstances when state law forbids the procedure. 

No matter how the Ninth Circuit rules in the Idaho case regarding EMTALA, the losing party will probably appeal the case to the U.S. Supreme Court.

Thank You for Joining Us in Prayer

Please pray:
  • The Ninth Circuit U.S. Court of Appeals will support the life of both mothers and unborn babies by ruling that EMTALA does NOT conflict with, and therefore does NOT preempt, Idaho’s Defense of Life Act.
  • The Supreme Court of the United States and all judges presiding in abortion cases will receive the truth in their hearts and minds to prioritize the protection of both mothers and their unborn babies.

Thank you for joining Council for Life in a focused prayer effort for the end of abortion and the protection of women and preborn children.

We pray for the transformation of our culture to welcome, cherish and defend God’s most precious gift of life.