Appeals court considers next step for emergency abortion care in Idaho • Oregon Capital Chronicle

An 11-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments this week in a case that will determine whether doctors can provide emergency abortion care without criminal prosecution in Idaho, a state where abortion is virtually prohibited.

The U.S. Department of Justice sued Idaho in 2022 to prevent it from applying its criminal abortion ban to emergency room doctors who may 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 doctors under such circumstances would violate the federal Emergency Medical Treatment and Labor Act, or EMTALA, which requires Medicare-funded hospitals to treat patients who show up in emergency rooms, regardless of their ability to pay.

Idaho’s ban contains an exception intended to save the life of the pregnant patient, but not to prevent adverse health consequences, including loss of future fertility, which is a risk in the event of a serious infection or bleeding. Without more clarity in the law, doctors said they cannot confidently assess when to safely intervene to save a person’s life and what constitutes a “good faith” judgment. Rather than take this risk, high-risk obstetricians have patients transported by plane to an out-of-state facility 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 that at their facilities such transfers had occurred only once. But between January and April, when the U.S. Supreme Court decided to take up the case and lifted an injunction blocking enforcement of the emergency care ban, six patients were transferred.

“This is not an emergency care law”

Idaho lawyers have argued that the federal EMTALA law does not supersede state law banning abortion, and say it calls for stabilizing treatment to be given to an “unborn child.” They also argue that situations described by doctors in which an abortion might be necessary as a stabilizing treatment would qualify for 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 in defending the law.

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

“The more things you put into law, the more you start to limit the belief in the good faith of the doctor,” Meehan said.

Mendoza asked how doctors are supposed to know their actions won’t be prosecuted if it’s not specific in the law, and Meehan responded that it’s not intended to resolve these situations.

“This is not an emergency care law, it is a law that primarily prohibits elective criminal abortions. This is not about medical treatment,” Meehan said.

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

“Your argument is that if the mother wants to kill the baby even though there is no need to prevent (death), then it should be airlifted, right?” VanDyke said.

Harrison said the problem is that a doctor cannot immediately determine whether a pregnant patient’s life is in danger due to the condition. So she is sent to a place where abortion is legal and the full range of care options are available.

The circuit committee will probably give its opinion in the coming months

Tuesday’s appeals court hearing came six months after the U.S. Supreme Court. the judges decided By the summer, it was too early to make a decision and they sent the case back to the lower court. But it started in 2022, shortly after the Supreme Court’s Dobbs decision overturning Roe v. Wade and returned regulation of abortion procedures to the states.

The number of appellate judges in this case was higher than usual because it is an “en banc” case. A three-judge panel initially ruled to vacate the Idaho District Court’s preliminary injunction, leaving emergency room doctors exposed to lawsuits under the ban.

The 9th Circuit is not required to issue an opinion within a specific time frame, although it will likely rule in the coming months.

The panel could decide whether to keep the injunction in effect or vacate it and send the case back to the district court in either decision. The case could also be dropped entirely in January after Trump is sworn in and new leaders take the reins of the Justice Department. In this case, a new plaintiff would have to start the entire case from scratch.

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