Abortion bans still leave a ‘gray area’ for doctors after Idaho Supreme Court case

The Supreme Court’s abortion ruling on Thursday is a narrow one that applies only to Idaho and sends a case back down to the appeals court. Confusion among doctors in states that have strict abortion bans remains widespread.

The case concerns the kinds of situations in which emergency room doctors could end a pregnancy. Under Idaho law, it is a felony to provide nearly all abortions, unless the life of the mother is at risk. But what if a pregnancy threatens her health? For now, those abortions can happen in Idaho emergency rooms.

“Essentially what we got is not true relief to people in Idaho or in other abortion-banned states,” says Dr. Nisha Verma, an OB-GYN in Atlanta. “There is continued uncertainty, in terms of what is going to happen in the future.”

The federal government has a law known as the Emergency Medical Treatment and Active Labor Act – or EMTALA – which says that anyone who comes into the emergency room must be stabilized before they’re discharged or transferred. The Biden administration argued that should apply, even if the treatment is an abortion, and the patient is in a state that bans abortion with very limited exceptions. The court, in a 6-3 vote, dismissed the case, without ruling on its merits.

Verma notes that the court did not establish that EMTALA is the standard across the country.

'Life of the mother' exceptions

Idaho is one of six states that have abortion bans that do not include exceptions for the health of the mother. The other states are South Dakota, Texas, Oklahoma, Arkansas and Mississippi, according to KFF, the health policy research organization.

By sending the ruling down to the lower court, the decision allows Idaho doctors the go-ahead to treat pregnancy complications in the E.R. again, but possibly only until the Ninth Circuit Appeals Court rules in the case. It offers no such instruction in the other states with strict bans.

Idaho Attorney General Raúl Labrador said he was optimistic about the appeals court. “The Ninth Circuit's decision should be easy,” he said in a press conference following the decision. He was confident the Idaho law would prevail. “I remain committed to protect unborn life and ensure women in Idaho receive necessary medical care.”

Labrador said he has been in touch with doctors and hospitals across the state, and acknowledged doctors were fearful of prosecution. “As long as [doctors] are exercising a good faith judgment that the condition could lead to death, that [a patient's] life could be in jeopardy, even if it's not immediate, they can perform the abortion.”

The Justice Department, which brought the case against the state of Idaho was also optimistic. “Today’s order means that, while we continue to litigate our case, women in Idaho will once again have access to the emergency care guaranteed to them under federal law,” Attorney General Merrick Garland said in a statement. “The Justice Department will continue to use every available tool to ensure that women in every state have access to that care.”

Related: Supreme Court allows Idaho to offer emergency medical abortions

Muted relief for an Idaho OB-GYN

Dr. Sara Thomson, an OB-GYN in Boise, was a panelist with Health Secretary Xavier Becerra at an event on reproductive rights on Wednesday when Becerra's press secretary shared news of the decision that had accidentally been posted on the Supreme Court website.

“I didn't have my phone with me for the duration of that event, and I walked out of the building and had 42 text messages about all of this,” Thomson says. “I'm starting to weed through and process it. Initially, of course, I was relieved when I saw the headline, but my relief has been muted in learning that this may just be another temporary decision.”

For now, she and other OB-GYNs in Idaho have more clarity and legal security when they treat patients facing early pregnancy emergencies, she says, adding that those are always devastating conversations.

“I am relieved for the patients that I'm going to be taking care of in the immediate future. I do still feel like it's tragic that pregnant women have had to languish with emergency complications and have their care delayed or denied while our state fought this and the Supreme Court took six months to consider the case,” Thomson says.

Idaho's abortion law has also made a shortage of doctors in the state worse. Nearly one in four OB-GYNs have left the state or retired since the law went into effect, according to a recent report, and hospitals have been having trouble recruiting new doctors. Three hospitals closed their labor and delivery units in Idaho.

Related: Report: Emergency abortions may soon be allowed again in Idaho

Disappointment all around

Advocates and experts on both sides of the issue expressed frustration and disappointment that the Supreme Court didn’t address the substance of the issues in the case.

"We urge the courts to affirm the availability of stabilizing emergency abortion care in every single state," Dr. Stella M. Dantas, president of the American College of Obstetricians and Gynecologists, wrote in response to the decision. "We are truly disappointed that this decision affords no long-term clarity of the law for doctors, no comfort or peace of mind for pregnant people living under abortion bans across the country, and no real protection for the provision of evidence-based essential health care or for those who provide that care." "The Supreme Court created this health care crisis by overturning Roe v. Wade and should have decided the issue," wrote Nancy Northup, president and CEO of the Center for Reproductive Rights, which has filed state lawsuits representing dozens of patients who claim abortion bans harmed them. "Women with dire pregnancy complications and the hospital staff who care for them need clarity right now."

Dr. Ingrid Skop, an OB-GYN and director of medical affairs at Charlotte Lozier Institute, a research organization that opposes abortion, was also disappointed in the outcome. “Forcing doctors to end an unborn patient’s life by abortion in the absence of a threat to his mother’s life is coercive, needless and goes against our oath to do no harm,” she wrote in a statement. Her organization wrote a brief in support of Idaho’s case.

Related: Hospitals must provide emergency abortions, Washington governor says

A case about the ‘gray area’

Patient stories that have come out since Roe v. Wade was overturned in June 2022 have illustrated the conflicts that can arise during pregnancy complications in states with very limited abortion exceptions.

Jaci Statton, a 27-year-old in Oklahoma, had a partial molar pregnancy last year — a type of pregnancy that is not viable. Despite being too nauseous to eat and at risk of hemorrhage, hospital staff would not give her an abortion. She lived too far from the hospital to wait at home.

Oklahoma Children's Hospital staff "were very sincere, they weren't trying to be mean," Statton told NPR last year. "They said, 'The best we can tell you to do is sit in the parking lot, and if anything else happens, we will be ready to help you. But we cannot touch you unless you are crashing in front of us or your blood pressure goes so high that you are fixing to have a heart attack.'" She later filed a federal complaint against the hospital, but it was rejected.

Reached this week, Statton explained that before she found herself in need of an abortion during a pregnancy complication, she didn’t know that could happen. "I've always been pro-life — I didn't even know there was a gray area that existed,” she says. “A lot of people, and especially in the more conservative states, I don't think that they know there is a gray area. I think they think it's very black and white. It's either good or it's bad. I think a lot of people should be educated more about these types of things," like molar pregnancies, ectopic pregnancies, and serious genetic fetal anomalies.

She said state lawmakers dismissed what happened to her, which makes her angry. "Oklahoma is a very proud state that they're abortion free, and I'm like, 'Yeah, that's really like good for a pro-life [state] but at what expense to the people in need?'"

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