In an article for Slate, Partner Lindsay Harrison and co-author Dahlia Lithwick discuss Idaho's near-total abortion ban and the federal Emergency Medical Treatment and Labor Act (EMTALA), which conflict with one another. The article drew the attention of Supreme Court Justice Kagan, who mentioned it during oral argument today.
EMTALA "requires that hospitals that participate in Medicare (meaning virtually every private hospital in the country) provide stabilizing care when the health of a patient is in serious jeopardy. As any emergency physician can explain, sometimes an abortion is the stabilizing care necessary to protect a patient's health," the authors write.
"As a result of that state's cramped statutory exceptions for emergency abortion care, a woman showing up to an ER in Idaho could be at imminent risk of losing her reproductive organs, and yet a physician could still not be allowed to end her pregnancy to save them, unless or until she is about to die," the authors add.
In January, the Supreme Court issued a stay allowing Idaho's law to take effect again, despite the conflict with EMTALA. The article explains how this has dramatically increased the number of women who must be transported by helicopter out of Idaho to receive the stabilizing care required by EMTALA, citing data from St. Luke's Health System.
Today, during the Supreme Court arguments in this case, Justice Elena Kagan asked about this data, noting "I read recently that the hospital that has the greatest emergency room services in Idaho has just in the few months that this has been in place had to airlift six pregnant women to neighboring states, whereas, in the prior year, they did one the entire year." If Idaho were right about the law's limited effects, Justice Kagan asked, "why is this happening?"
The article concludes that the Supreme Court Justices "have an opportunity to undo the harm their earlier ruling has already caused. Their decision will affect the law not just in Idaho but in every state whose laws clash with EMTALA."
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