Federal court divided over Idaho’s abortion ban and emergency care fight
The Biden administration’s challenge to Idaho’s strict abortion ban divided a federal appeals court that heard arguments Tuesday in an emergency abortion care case that has already reached the Supreme Court once.
Multiple judges on the 9th US Circuit Court of Appeals raised the possibility that President-elect Donald Trump’s incoming administration would drop the case. John Bursch, an attorney for Idaho who was urging the appeals court to lift a preliminary order pausing aspects of the state’s ban, said it wasn’t clear what the Trump Justice Department would do and that courts shouldn’t just wait in such an “uncertain” situation.
An attorney for St. Luke’s, a large medical system in the state that is supporting the administration as a so-called friend of the court, suggested the hospital might seek to keep the lawsuit alive if the Trump DOJ drops the suit.
Several judges on the appeals court appeared inclined to leave the order in place and return the case to the trial court for additional proceedings. However, at least a handful of the judges – most of them appointees of Trump – expressed skepticism of the Biden administration’s arguments.
The Biden administration claims that federally funded hospitals are obligated to provide abortions when pregnancy complications are jeopardizing a woman’s life or her health, even in states that prohibit the procedure.
Idaho’s abortion ban – which was partially blocked and reinstated multiple times over the course of the litigation – has an exemption for when a woman’s life is at risk, but not for when her health is imperiled in a way that stops short of being life-threatening.
Judge Milan Smith, put on the court by former President George W. Bush, grilled Bursch on Idaho’s claim that there is no conflict between the abortion law and the relevant federal statute in the case, posing a hypothetical in which a woman might lose a leg if an abortion is not performed for a pregnancy complication that is not yet life-threatening. Judge Salvador Mendoza Jr., a Biden appointee, questioned a lawyer for the Idaho Legislature on the lack of effort by state lawmakers to amend the abortion law to make clear that the ban’s exemption covered the specific types of medical emergencies that are in dispute.
However, Trump-appointed Judge Lawrence VanDyke zeroed in on a state’s ability to make ethical choices in how it regulates medicine within its borders. He posed a scenario to Justice Department attorney Catherine Carroll in which a doctor was faced with a medical emergency that could be treated with an unethically harvested organ in a state that barred the use of such organs.
The Biden administration is pointing to a 1986 law, the Emergency Medical Treatment and Active Labor Act, or EMTALA, which requires hospitals that accept Medicare to treat patients in medical emergencies regardless of their ability to pay for services.
Idaho counters that the Justice Department is overreaching in its claims that the law could require the provision of abortion, with the state pointing specifically to the law’s references to “unborn child” when an emergency patient is pregnant.
“I don’t think Congress, when they enacted EMTALA, or President Reagan when he signed it into law, anticipated an interpretation that required the child’s life to be taken,” Bursch, a senior counsel for the conservative legal advocacy group Alliance Defending Freedom, said in an interview with CNN last week.
The Supreme Court took up the case in January when it was at a preliminary phase, reviving the full law at the time, only to decide after hearing arguments months later that it had granted the case prematurely. The high court in a 6-3 June decision restored an order pausing the ban in medical emergencies while the litigation played out back in lower courts. Medical providers said in court filings that they were forced to airlift women out of state to receive emergency abortions in the six months that the Supreme Court allowed the Idaho ban to be fully enforced.
“What is more clear now more than ever before is that the stakes in this case could not be higher,” said Alexa Kolbi-Molinas, the deputy director of the Reproductive Freedom Project of the ACLU, which is supporting the Biden administration in the case.
If Trump DOJ drops lawsuit, others can try to keep it alive
It’s not clear when the 9th Circuit – where Democratic appointees outnumber Republican appointees by a small margin – will issue its ruling. But if it rules against Idaho, that will create a so-called circuit split that will make it more likely the Supreme Court will grant the case for review again.
In a separate dispute concerning emergency room abortion care, the conservative 5th US Circuit Court of Appeals ruled against the Biden administration, finding that EMTALA did not require hospitals to offer abortions in states that banned them.
It’s possible that in the Idaho case, the Trump Justice Department will opt to drop the lawsuit, and anti-abortion groups are advocating that his administration do so. However, an outside party – such as patients in Idaho or medical providers affected by the abortion ban – can seek to intervene to keep the lawsuit alive.
St. Luke’s, the state’s largest not-for-profit health system, argued Tuesday as a friend of the court. (Its lawyer declined CNN’s request for comment.)
In a brief, it argued the ban’s life-of-the-mother exemption is not enough to assure doctors they can provide abortions in medical emergencies without fear of prosecution, warning of concerns that a prosecutor could “second guess physicians’ ‘good faith medical judgments’ that an abortion was necessary to prevent the death of a pregnant patient.”
“Because a physician administering an emergency termination in Idaho would be risking their professional license, livelihood, personal security, and freedom, it is only natural that physicians may hesitate and seek assurance, to the extent possible, before proceeding,” St. Luke’s said. “In the meantime, their patients may suffer, and their conditions may deteriorate, perhaps materially.”
A ‘roadmap’ for Idaho
When the case was previously before the Supreme Court, several justices signed on to dissents and concurrences that gave insight into how they were thinking.
The parties have picked up on those cues in their latest round of appellate briefs, emphasizing points made by justices that support their positions. For Idaho, that’s meant expanding upon arguments the state made about the significance of the term “unborn child” in the law, which was a focus of a dissent written by Justice Samuel Alito and joined by Justices Clarence Thomas and Neil Gorsuch.
Bursch, speaking to CNN, described Alito as leaning into Idaho’s arguments about “how the unborn child is a separate patient that EMTALA requires to be stabilized.”
The Justice Department, in a point adopted by some of the liberal justices when they wrote about the case this summer, counters that Congress added the language to the federal law to ensure emergency rooms treated patients who faced no risks to their own health but whose pregnancies were in danger. The Justice Department declined CNN’s request for comment.
“Alito, Thomas and Gorsuch essentially provided a roadmap to just how they would strip pregnant women of” their right to stabilizing emergency care, said Kolbi-Molinas. “Idaho is doing its best to follow it.”
This story and headline have been updated with additional developments.
