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Wednesday, April 24, 2024
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U.S. Abortion Landscape

 * Updates
 * Arizona’s Abortion Ban
 * Abortion Data Wars
 * Women Share on TikTok
 * Tracking Abortion Laws
 * Abortion Pill Case


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LiveUpdated 
April 24, 2024, 11:00 a.m. ET2 minutes ago
2 minutes ago


LIVE UPDATES: SUPREME COURT TO CONSIDER ACCESS TO EMERGENCY ABORTIONS

The case, which could reverberate beyond Idaho to over a dozen other states with
abortion bans, is the second time in less than a month that the justices have
heard an abortion case.


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Updated 
April 24, 2024, 10:05 a.m. ET57 minutes ago
57 minutes ago

Abbie VanSickle

Reporting from Washington




HERE’S THE LATEST ON THE ARGUMENT.

The Supreme Court is hearing arguments on Wednesday about whether Idaho’s
near-total abortion ban conflicts with a federal law that protects patients who
need emergency care, in a case that would determine access to abortions in
emergency rooms across the country.

The federal law affects only the sliver of women who face dire medical
complications during pregnancy. But a broad decision by the court could have
implications for about 14 states that have enacted near-total bans on abortion
since the court overturned a constitutional right to abortion in June 2022.

The case may also have broader consequences if the justices adopt language about
fetal personhood, some legal scholars argue, an increasingly polarizing fight
that surfaced recently in Alabama, after its top court ruled that frozen embryos
in test tubes should be considered children.

The dispute is the second time in less than a month that the Supreme Court is
grappling with abortion. It is a potent reminder that even after Justice Samuel
A. Alito Jr. vowed in 2022 that the issue of abortion would return to elected
representatives in Dobbs v. Jackson Women’s Health Organization, it continues to
make its way back to the court. In late March, the justices considered the
availability of the abortion pill mifepristone.

The federal law at issue, the Emergency Medical Treatment and Labor Act, or
EMTALA, enacted by Congress in 1986, mandates that hospitals receiving federal
funds provide patients with stabilizing care.

The Biden administration maintains that this law collides with — and should
override — Idaho’s near-total abortion ban. Under the state law, the procedure
is illegal except in cases of incest, rape or when it is “necessary to prevent
the death of the pregnant woman,” and doctors who perform abortions could face
criminal penalties. Lawyers for the state contend that the administration has
maneuvered the federal law in a way that would bypass state bans.

Here’s what to know:

 * In a brief to the court, lawyers for the Biden administration called the
   effect of the federal law “limited but profound.” The government’s position
   is that the law can be triggered when a pregnant woman who suffers a
   dangerous condition that requires immediate medical care goes to an emergency
   room for medical care.

 * Idaho’s attorney general, Raúl Labrador, has insisted the matter of abortion
   is now up to the states. In a brief, he argued that the Biden administration
   was trying to use federal law to turn Idaho emergency rooms into “abortion
   enclaves in violation of state law.”

 * The Biden administration has relied on EMTALA as a narrow way to challenge
   state-level abortion bans. After the court overturned a constitutional right
   to an abortion, near-total bans on the procedure swiftly took effect in some
   states, including in Idaho. After Idaho’s Republican-controlled Legislature
   passed the Idaho Defense of Life Act, which makes it a crime to perform or
   assist in performing an abortion, the Biden administration sued the state in
   August 2022, a few weeks before the law was set to take effect, arguing that
   federal law should trump the state law when the two directly conflict.

 * The federal law specifies that a hospital must provide care to a person with
   an “emergency medical condition.” For pregnant women, the law states, that
   means when “the absence of immediate medical attention could reasonably be
   expected to result in” placing “the health of the woman or her unborn child”
   in “serious jeopardy.” If a hospital breaks the federal law, it can be sued
   and potentially lose Medicare funding. The federal law also includes a
   provision that it will not pre-empt a state or local law unless “the
   requirement directly conflicts with” the federal law.

 * But the state law imposes a prison sentence of up to five years if it is
   violated and can lead to the loss of a doctor’s medical license. The
   legislation allows exceptions “to prevent the death of the pregnant woman,”
   to end an ectopic or molar pregnancy, or to end certain pregnancies from rape
   or incest.

 * A federal trial judge temporarily blocked the state’s ban. In the fall of
   2023, a three-judge panel from the U.S. Court of Appeals for the Ninth
   Circuit put the ruling on hold and reinstated the ban. But that decision was
   ultimately overridden by an 11-member panel of the appeals court, which
   temporarily blocked Idaho’s law as the appeal continued.

Show more
April 24, 2024, 10:59 a.m. ET4 minutes ago
4 minutes ago

Kate Zernike

Reporting on abortion

The Idaho lawyer argues that if the court upholds the requirement to provide
abortions needed in a medical emergency, women could get abortions because they
arrive in emergency rooms claiming that pregnancy is causing them severe mental
distress. Anti-abortion activists have long been suspicious that any mental
health exception provides a loophole that would turn emergency rooms into
abortion clinics; some states have passed laws explicitly stating that there are
no mental health exceptions to abortion restrictions.

April 24, 2024, 10:54 a.m. ET9 minutes ago
9 minutes ago

Pam Belluck

Reporting on reproductive health

Idaho’s lawyer is citing the language of “unborn child” in the federal law,
saying that a fetus’s health needs to be considered equally with the life of a
pregnant woman. The federal government says the references to “unborn child” in
the law apply only to situations in which women are in labor and about to give
birth, not to medical emergencies earlier in pregnancy when an abortion would be
necessary to prevent serious health consequences for the pregnant woman.



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April 24, 2024, 10:51 a.m. ET12 minutes ago
12 minutes ago

Kate Zernike

Reporting on abortion

Idaho’s lawyer objects to Justice Kagan’s assertion that abortion is the
standard of care in some medical conditions, saying there is no national
standard of care. The American College of Obstetricians and Gynecologists, which
the lawyer has cited, sides more with Justice Kagan.

April 24, 2024, 10:51 a.m. ET11 minutes ago
11 minutes ago

Kate Zernike

Reporting on abortion

In a statement urging the court to rule against the state, the group said: “In
many of these emergency situations, the only way to treat or stabilize a patient
is to end the pregnancy that is complicating or threatening their health.
Because of this, EMTALA’s protections must cover abortion care so that access to
lifesaving emergency care does not depend on a person’s zip code.”

April 24, 2024, 10:41 a.m. ET21 minutes ago
21 minutes ago

Pam Belluck

Reporting on reproductive health

Justice Sotomayor asks Idaho’s lawyer if it’s true that the state’s ban would
prevent abortion in a situation where a woman would otherwise lose an organ or
have serious medical complications. Idaho’s lawyer admits it would prevent
abortion in those circumstances. “Yes, Idaho law does say that abortions in that
case aren’t allowed,” he said.

April 24, 2024, 10:39 a.m. ET24 minutes ago
24 minutes ago

Kate Zernike

Reporting on abortion

Justice Alito sympathizes with Idaho’s lawyer, saying it is unfair that other
justices are presenting him with hypotheticals about what doctors might do in
different situations. This highlights a dynamic that doctors have complained
about since Roe v. Wade was overturned: uncertainty about what they can and
can’t do when faced with a woman who might need an abortion has forced doctors
to think like lawyers. And often the person making the decision is a lawyer for
the hospital.

April 24, 2024, 10:37 a.m. ET25 minutes ago
25 minutes ago

Adam Liptak

Reporting from Washington

Justice Amy Coney Barrett, a conservative, seems frustrated by some of the
hedged answers from Idaho’s lawyer.

Image

Credit...Erin Schaff/The New York Times

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April 24, 2024, 10:36 a.m. ET26 minutes ago
26 minutes ago

Kate Zernike

Reporting on abortion

Justice Kagan is recounting stories of women who will be left with serious
health complications because their doctors could not treat them until the women
faced immediate death. Women in several states with abortion bans, including
Texas and Oklahoma, have sued to try to clarify what qualifies as a medical
exception, saying they were left infertile because doctors had to wait until
they faced certain death to give them abortions.

April 24, 2024, 10:34 a.m. ET28 minutes ago
28 minutes ago

Elizabeth Dias

Reporting from Washington

This case is another example of why the complicated language of abortion policy
often obscures the conversation for everyday people. Phrases like “EMTALA” are
shorthand known mostly to experts (like “Mexico City Policy” and “Hyde” and
“Title X”) — but the reality at stake in this case is concrete: emergency
medical care for pregnant women.

April 24, 2024, 10:33 a.m. ET29 minutes ago
29 minutes ago

Pam Belluck

Reporting on reproductive health

Justice Sotomayor is vigorously challenging the Idaho lawyer’s argument. She is
saying that Idaho’s ban would prevent providing an abortion in severe situations
when women would otherwise risk losing their reproductive organs or have other
serious consequences.

April 24, 2024, 10:31 a.m. ET31 minutes ago
31 minutes ago

Kate Zernike

Reporting on abortion

Idaho’s lawyer argued “I know of no state” that does not provide an exception to
save the life of a pregnant woman. But many doctors have argued they need to act
in an emergency to save not only the life but also the health of the pregnant
woman. Six state bans include exceptions only for risk to life, not health:
Idaho, South Dakota, Oklahoma, Mississippi, Arkansas, and Wisconsin (that
state’s ban, which dates from 1849, is on hold pending litigation.)

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April 24, 2024, 10:27 a.m. ET36 minutes ago
36 minutes ago

Kate Zernike

Reporting on abortion



ABORTION RESTRICTIONS HAVE CHANGED THE MEDICAL CARE IN EMERGENCY ROOMS, TOO.

Image

Medical personnel stand in the ambulance bay at the emergency room at Del Sol
Medical Center in El Paso, Texas.Credit...Joel Angel Juarez for The New York
Times

Two months after the Supreme Court overturned Roe v. Wade and the constitutional
right to abortion, the medical consequences extend far beyond abortion clinics
and women seeking to end unwanted pregnancies. Doctors who never thought of
themselves as “abortionists,” to use the language of the court’s decision, say
the criminalization of abortion is changing how they treat women who arrive in
emergency rooms and on labor and delivery floors with wanted but complicated
pregnancies.

During the 50 years of Roe, abortion became the standard of care in many medical
situations. Now, laws ban it or make it unavailable in about half the states,
usually with exceptions only for rape and incest or to save the life of the
pregnant woman. While a few states have tried to specify conditions that
qualify, the laws are generally vague and have failed to account for every
possibility. With lawmakers attempting to regulate medical procedures, medical
providers say they have to think like lawyers.

“A lot of us go into emergency medicine because of the imperative to take care
of every patient — the person without housing and a C.E.O. — and we’re really
proud of that ethical obligation to say, ‘Here’s the patient in front of me and
I’m going to do everything I can for them,’” said Dr. Alison Haddock, an
emergency physician in Houston and chair of the board of the American College of
Emergency Physicians. Now, she said, “We’re no longer basing our judgment on the
clinical needs of the woman, we’re basing it on what we understand the legal
situation to be.”

Physicians would more typically talk to hospital lawyers about guardianship when
caring for elderly or psychiatric patients, Dr. Haddock said. Now, when patients
arrive with ectopic pregnancies, miscarriages or hemorrhaging — all situations
where abortion has been established as standard care — the questions for the
lawyers are more pressing: “Do we wait until the fetus is definitely dead, or is
mostly dead good enough?” she asked. “If they’re telling us to wait for the
condition to be fully emergent, how much bleeding is too much?”

“Having to consult a lawyer in an emergent situation is a whole new ballgame,”
she said.


Show more
April 24, 2024, 10:25 a.m. ET37 minutes ago
37 minutes ago

Pam Belluck

Reporting on reproductive health

Justice Sotomayor tells Idaho’s lawyer that the federal law has to prevail over
Idaho’s ban. If the states’ ban can supersede federal law, it would allow
situations in which a state law could say “don’t treat diabetics with insulin,
treat them only with pills,” when “a doctor looks at a juvenile diabetic and
says ‘without insulin, they’re going to get seriously ill.’”

April 24, 2024, 10:21 a.m. ET41 minutes ago
41 minutes ago

Charlie Savage

Reporting from Washington

The three female, Democratic-appointed justices who voted against overturning
Roe v. Wade — Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor — have
dominated the hearing so far, vigorously and skeptically grilling Josh Turner,
the Idaho lawyer. Other than a de rigueur opening question from Justice Clarence
Thomas, the longest-serving active justice, the Republican appointees who ended
constitutional abortion rights have been silent these first 15 minutes.

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April 24, 2024, 10:20 a.m. ET42 minutes ago
42 minutes ago

Pam Belluck

Reporting on reproductive health

Justice Kagan tells Idaho’s lawyer that EMTALA clearly requires emergency room
doctors to stabilize patients to prevent their health from getting worse, not
just to save their lives. “It means to provide the treatment necessary to assure
within reasonable medical probability that no material deterioration occurs,”
she said.

Image

Credit...Erin Schaff/The New York Times
April 24, 2024, 10:19 a.m. ET43 minutes ago
43 minutes ago

Pam Belluck

Reporting on reproductive health

Joshua Turner, the lawyer for Idaho, is arguing that “If ER doctors can perform
whatever treatment they determine is appropriate, then doctors can ignore not
only state abortion laws, but also state regulations on opioid use and informed
consent requirements.” He says that since abortion is largely illegal under
Idaho’s ban, it is mostly unavailable because “illegal treatments are not
available treatments.”

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April 24, 2024, 10:13 a.m. ET50 minutes ago
50 minutes ago

Pam Belluck

Reporting on reproductive health

Doctors in Idaho say the abortion ban has seriously harmed health care in the
state. Dr. Jim Souza, chief physician executive of St. Luke’s Health System in
Idaho, said in a recent press briefing that since the ban was allowed to take
effect earlier this year, six patients needing emergency abortions have had to
be transferred out of state. He also said many doctors have left Idaho “because
they’re not willing to take the risk to go to jail and lose their license for
practicing medicine.”

April 24, 2024, 10:18 a.m. ET45 minutes ago
45 minutes ago

Kate Zernike

Reporting on abortion

Idaho’s attorney general has disputed the reports that the state’s abortion ban
has prompted an exodus of doctors. But Dr. Souza said it was real, and
particularly devastating in a state with relatively few doctors to begin with.
“I know their names, I know where they are,” he said in a recent call with
reporters. “And my first question to anyone who is choosing not to see the
complexity here is, have you talked to an ob/gyn in the state? Can you find
ob/gyns who say there is no problem with this law in our state? You can’t. They
are distinctly in the minority.”

April 24, 2024, 10:07 a.m. ET55 minutes ago
55 minutes ago

Pam Belluck

Reporting on reproductive health

Federal laws supersede state laws when the statutes conflict. Today’s arguments
focuses partly on whether Idaho’s abortion ban directly conflicts with the
federal law, EMTALA. Idaho says it doesn’t because EMTALA only requires
hospitals to offer treatments that are available, and Idaho’s near-total ban
made most abortions unavailable. The federal government says Idaho’s law
directly violates EMTALA, which requires care to keep patients’ health from
deteriorating, not just to prevent death.

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April 24, 2024, 10:06 a.m. ET56 minutes ago
56 minutes ago

Aishvarya Kavi

There are anti-abortion protesters outside of the court this morning. They are
trading chants with protesters who support reproductive rights.

“Abortion is murder!”

“Abortion is healthcare!”

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April 24, 2024, 10:03 a.m. ET1 hour ago
1 hour ago

Adam Liptak

Reporting from Washington



THE SUPREME COURT SAID IT WAS DONE WITH ABORTION. ITS DOCKET SAYS OTHERWISE.

Image

In March, the justices considered an effort to curtail a widely used abortion
pill, part of the most common way to terminate pregnanciesCredit...Evelyn
Hockstein/Reuters

When the Supreme Court overturned Roe v. Wade in 2022, eliminating the
constitutional right to abortion, it made a kind of a promise. The majority
opinion, written by Justice Samuel A. Alito Jr., said at least seven times that
the ruling was an exercise in judicial modesty.

“The authority to regulate abortion must be returned to the people and their
elected representatives,” he wrote, in a formulation that, with only small
variations, was repeated throughout the opinion like a refrain.

The Supreme Court, Justice Alito said, was getting out of the business of
deciding abortion cases.

Things have not turned out that way. In the space of just a month this spring,
the court will have heard arguments in two important cases on access to
abortions.

In March, the justices considered an effort to curtail a widely used abortion
pill, part of the most common way to terminate pregnancies. If the court rules
that the Food and Drug Administration acted unlawfully in approving the
medication, people in states that continue to allow abortion would face major
hurdles in obtaining it.

Put another way, the will of the people and their elected representatives in
states that have decided to allow abortion would be thwarted.

Questions from the justices in March suggested that they would avoid the central
issue in the case, ruling instead that the anti-abortion doctors and
organizations who challenged the agency’s approval of the pill had not suffered
the sort of direct injury that gave them standing to sue. Such a ruling would be
a victory for proponents of abortion rights, but a provisional one, as other
challenges could follow.

Wednesday’s argument illustrates a second way in which the Supreme Court cannot
avoid abortion cases by returning the question to legislatures. That is because
those bodies can be at odds, leaving it to the justices to resolve clashes.

The case concerns Idaho’s near-total ban on abortions, enacted by its
Legislature, which the Biden administration said conflicted with a federal
statute, enacted by Congress, that allowed for some exceptions.

Judge B. Lynn Winmill of the Federal District Court in Boise entered a
preliminary injunction partly blocking the state law in 2022.

“It’s not about the bygone constitutional right to an abortion,” he wrote. “The
court is called upon to address a far more modest issue — whether Idaho’s
criminal abortion statute conflicts with a small but important corner of federal
legislation. It does.”

Show more
April 24, 2024, 10:00 a.m. ET1 hour ago
1 hour ago

Adam Liptak

Reporting from Washington

Joshua N. Turner, a lawyer for Idaho, will argue first, defending the state’s
strict abortion ban. He will talk without interruption for about two minutes and
then face questions for some 25 minutes in a free-for-all format. After that,
the justices will ask questions one-by-one, in order of seniority.

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April 24, 2024, 9:57 a.m. ET1 hour ago
1 hour ago

Pam Belluck

Reporting on reproductive health

Expect discussion about EMTALA’s language concerning pregnancy. Idaho argues
that because EMTALA mentions a woman’s “unborn child,” it means fetal life needs
to be protected. The federal government argues that EMTALA only mentions
weighing risks to the health of an “unborn child” when women are in labor, about
to give birth. It says other emergencies, like severe bleeding in pregnancies
that aren’t viable, might require abortion to protect a woman’s health.

April 24, 2024, 9:59 a.m. ET1 hour ago
1 hour ago

Pam Belluck

Reporting on reproductive health

Some reproductive health legal experts have wondered if Idaho’s emphasis on the
“unborn child” references in EMTALA is intended to use this case to strengthen
other anti-abortion efforts to establish “fetal personhood” rights.

April 24, 2024, 9:51 a.m. ET1 hour ago
1 hour ago

Abbie VanSickle

Reporting from Washington




THE CONSEQUENCES OF THE COURT’S DECISION COULD REVERBERATE BEYOND IDAHO.

Image

Members of Students for Life of America knocking on doors in Arizona, which,
like Idaho, has a near-total abortion ban. A decision in the Idaho case could
affect more than a dozen other states with such bans.Credit...Cassidy Araiza for
The New York Times

The case before the Supreme Court on Wednesday is the first time since the
justices overturned Roe v. Wade that they will consider a state law
criminalizing abortion.

The dispute pits a federal law aimed at emergency medical care in hospitals
against an Idaho ban on abortion in nearly all cases, with narrow exceptions for
the life of a woman, or instances of rape or incest.

The decision by the justices, which is expected by the end of the term in late
June or early July, may have repercussions outside Idaho. A decision there could
affect more than a dozen other states that have passed near-total bans on
abortion since the court’s 2022 decision, Dobbs v. Jackson Women’s Health
Organization.

Idaho’s abortion law is one of the most stringent in the country. But the state
and those who have filed friend-of-the-court briefs in its support argue that
the Biden administration’s approach is a thinly disguised way to circumvent the
Supreme Court’s decision to overturn Roe v. Wade and to continue to allow access
to abortion across the country.

A ruling for the Biden administration would most likely solidify the ability of
doctors in emergency rooms, even those in states with strict anti-abortion laws,
to provide abortions in cases where they believe the procedure is necessary to
stabilize a woman’s health, whether or not her life is in danger.

A ruling for Idaho may spur other states to enact similarly strict measures.
Many emergency room doctors and medical groups in the state have also voiced
concern that siding with Idaho would also aggravate a growing shortage of
doctors in the state. According to federal data, almost all counties there do
not have enough primary care doctors, and the state ranks near the bottom in
doctors per capita.

Show more
April 24, 2024, 9:35 a.m. ET1 hour ago
1 hour ago

Aishvarya Kavi

It’s a cloudy morning outside of the Supreme Court, where protesters with the
Women’s March are taking part in “die-in.” 15 women are lying draped in sheets
made to look bloody around the abdomen.

“Pro-life is a lie, they don’t care if people die!”

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April 24, 2024, 9:30 a.m. ET2 hours ago
2 hours ago

Pam Belluck

Reporting on reproductive health



THE FEDERAL LAW CAME ABOUT IN PART BECAUSE OF HOW PREGNANT WOMEN WERE TREATED IN
EMERGENCY ROOMS.

Image

A hospital emergency department in Jackson, Mississippi, one of several states
with bans that outlaw most abortions, allowing it to save a woman’s life, but
not to prevent severe health consequences.Credit...Rory Doyle for The New York
Times

The abortion case before the Supreme Court on Wednesday centers on a federal law
requiring emergency medical care for any urgent condition, but its specific
mention of one condition — pregnancy — will matter most.

Lawyers for Idaho say the law’s language concerning a pregnant woman and “her
unborn child” supports the state’s defense of its ban that outlaws most
abortions unless women would otherwise die. One of Idaho’s claims is that the
federal law requires hospitals to care for the “unborn child.”

The federal government says Idaho is misinterpreting that language and argues
that Idaho’s ban violates the 1986 federal law: the Emergency Medical Treatment
and Labor Act or EMTALA. The law requires that emergency departments provide
stabilizing care not only to patients facing imminent death, but patients whose
health would otherwise deteriorate. If emergency departments cannot provide
care, they must transfer patients to hospitals that can.

EMTALA’s references to pregnancy were intended to address concerns at the time
it was enacted. The law’s purpose was to prevent “patient dumping” — hospitals
turning away people who could not pay or lacked health insurance.

At the time, private hospitals sometimes turned away seriously ill or injured
patients who couldn’t pay, including victims of stabbings or shootings and
people with severe infections or internal bleeding. In Texas, which enacted a
state anti-dumping law a year before the federal one, a man with third-degree
burns stumbled into a county hospital trailing a catheter and intravenous line
inserted by a private hospital that had ejected him.

There were alarming cases involving pregnant women in labor jettisoned from
private hospitals before their babies could be born. “It was sometimes so
egregious to see how people came in,” Dr. Ron Anderson, then the chairman of the
Texas board of health and chief executive of a county hospital in Dallas called
Parkland Memorial, recounted in an oral history.

“I remember a young woman in labor who was sent to Parkland from another
hospital — a religiously-affiliated hospital,” he said. “When she told them that
she was so glad that they would still see her even though her husband had lost
his job, they pushed her legs together, started an IV, and sent her to Parkland.
She was crowning — the baby was coming any minute. She delivered in the hallway
at Parkland.”

The federal law was originally titled “The Emergency Medical Treatment and
Active Labor Act” because Congress was concerned about women who were about to
give birth, said Sara Rosenbaum, a professor emerita of health law and policy at
the George Washington University who has worked on and studied EMTALA since its
inception. “Active” was removed from the title in 1989 because hospitals were
sending away women in labor if their contractions were more than five minutes
apart, she said.

Professor Rosenbaum said “labor and delivery really was a dominant issue”
because childbirth was the main reason poor or uninsured pregnant women would go
to emergency rooms. Abortion was legal under Roe v. Wade, and complications
earlier in pregnancy that might require an abortion to stabilize a woman’s
health were not specifically mentioned in the law, but were covered by the
general language applying to all emergency medical conditions, she said.

EMTALA mentions “delivery” as one way to stabilize a woman in labor. It also
says that risks to “the health of the unborn child” should be minimized when
emergency departments decide whether to transfer laboring patients elsewhere.

Idaho cites that language in briefs, writing that “EMTALA requires hospitals to
care for an unborn child” and that EMTALA “underscores the importance of caring
for the unborn child while indicating that other specific treatments are not
required.”

The federal government disputes that interpretation, writing in briefs that
three of EMTALA’s four references to considering the health of an “unborn child”
refer only to when a woman in labor might be transferred. The fourth reference
was added later to require stabilizing care if a pregnant woman goes to an
emergency room with an urgent problem that could impair her fetus, but not her
own health, the federal government said.

But, it said, that did not eliminate a hospital’s obligation to provide
abortions “when termination of the pregnancy is required to save the woman’s
life or prevent serious harm to her health.”

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April 24, 2024, 9:09 a.m. ET2 hours ago
2 hours ago

Pam Belluck

Reporting on reproductive health



WHAT IS EMTALA AND WHAT DOES IT DO?

Image

The law, enacted in 1986, applies to any hospital that receives Medicare funding
and has an emergency department — most hospitals in the United
States.Credit...Hiroko Masuike/The New York Times

One of the newest fronts in the abortion debate is a decades-old federal law
requiring hospitals to guarantee patients a certain standard of emergency care.

At issue in the case the Supreme Court is hearing on Wednesday is whether
Idaho’s near-total ban on abortions violates that law, the Emergency Medical
Treatment and Labor Act, or EMTALA, and if it does, whether the state law can be
followed instead of the federal law.

Here’s what to know:


WHAT DOES THE LAW DO?

EMTALA (pronounced em-TAHL-uh) was passed by Congress in 1986 and signed by
President Ronald Reagan, to address concerns that hospital emergency rooms were
turning away patients, especially poor ones or those without insurance.

The law says that if a patient goes to an emergency room with an “emergency
medical condition,” hospitals must either provide treatment to stabilize the
patient or transfer the patient to a medical facility that can, regardless of
the patient’s ability to pay. It applies to any hospital that receives Medicare
funding and has an emergency department — most hospitals in the United States.

Hospitals that violate the law can face consequences including fines and
exclusion from further Medicare funding.


WHAT DOES THAT HAVE TO DO WITH ABORTION?

The law does not mention abortion or name specific treatments for any emergency
medical condition. It requires only that hospitals use accepted medical
approaches for each patient. But soon after the Supreme Court overturned the
national right to abortion in June 2022, the Biden administration issued a
memorandum saying that EMTALA applies when abortion is necessary to stabilize a
patient. Such cases could include a patient whose water breaks too early in the
pregnancy or a patient experiencing severe pre-eclampsia.

“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,” the memorandum said.
“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 pre-empted.”

In its brief to the Supreme Court, Idaho said that the federal law “only
requires hospitals to offer treatments that are ‘available,’” and that the
state’s near-total ban made abortions unavailable in most circumstances. The
brief also said that EMTALA requires that emergency departments stabilize both a
pregnant woman and an “unborn child.”

The federal government argues that Idaho’s abortion ban violates EMTALA because
its very limited exceptions allow abortions to prevent a pregnant woman’s
imminent death, but not to prevent severe worsening of her health. EMTALA
requires emergency departments to provide stabilizing care when not doing so
could put a patient’s health in “serious jeopardy.”

In its brief, the government wrote: “EMTALA treats pregnancy termination the
same as any other stabilizing care: It must be provided if, and only if, it is
required to assure that no material deterioration of the individual’s condition
is likely to occur.”

Abbie VanSickle contributed reporting.


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April 24, 2024, 9:09 a.m. ET2 hours ago
2 hours ago

The New York Times




21 STATES HAVE RESTRICTED OR BANNED ABORTION SINCE ROE V. WADE WAS OVERTURNED.

Twenty-one states ban abortion or restrict the procedure earlier in pregnancy
than the standard set by Roe v. Wade, which governed reproductive rights for
nearly half a century until the Supreme Court overturned the decision in 2022.

In some states, the fight over abortion access is still taking place in
courtrooms, where advocates have sued to block bans and restrictions. Other
states have moved to expand access to abortion by adding legal protections.


TRACKING ABORTION BANS ACROSS THE COUNTRY

The New York Times is tracking the status of abortion laws in each state
following the Supreme Court’s decision to overturn Roe v. Wade.



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April 24, 2024, 5:02 a.m. ETApril 24, 2024
April 24, 2024

Abbie VanSickle

Reporting from Washington




TWO LAWSUITS, IN TEXAS AND IDAHO, HIGHLIGHT THE FIGHT OVER EMERGENCY MEDICINE
LAW.

Image

The cases have intensified pressure on the Supreme Court to settle whether the
Emergency Medical Treatment and Labor Act pre-empts state abortion
bans.Credit...Anna Rose Layden for The New York Times

In the weeks after the Supreme Court dismantled a constitutional right to
abortion in 2022 and returned the issue of access to the states, a new series of
court battles began.

After the Biden administration announced it would protect access to abortion
under emergency situations through a decades-old federal law, conservative
states pushed back, leading to dueling lawsuits in Texas and Idaho.

Those cases created a divide among federal courts, known as a circuit split. It
intensified pressure on the Supreme Court to settle whether the law, the
Emergency Medical Treatment and Labor Act, pre-empts state abortion bans,
shielding doctors who perform emergency abortions in efforts to stabilize the
health of a pregnant woman.

After Roe fell, the Department of Health and Human Services issued guidance to
hospitals, including those in states with abortion bans, that federal law
mandated that pregnant women be allowed to receive abortions in emergency rooms
so long as doctors believed the procedures were required for “stabilizing
treatment.”

In July 2022, days after the Biden administration announced it would use the
federal law to ensure abortion access in some emergency situations, Texas’ state
attorney general, Ken Paxton, sued. The administration’s interpretation of the
federal law, he said, would “force abortions” in Texas hospitals.

In the complaint, Mr. Paxton accused the administration of trying to defy the
Supreme Court’s ruling. “President Biden is flagrantly disregarding the
legislative and democratic process — and flouting the Supreme Court’s ruling
before the ink is dry,” he wrote.

The federal government was misinterpreting the Emergency Medical Treatment and
Labor Act, he added, writing that the law “does not guarantee access to
abortion.”

“On the contrary,” he continued, the law “contemplates that an emergency medical
condition is one that threatens the life of the unborn child.”

In August 2022, Judge James Wesley Hendrix of United States District Court for
the Northern District of Texas, a Trump appointee, ruled for Texas, finding that
the federal guidance of how to interpret the act went “well beyond” the text of
the law. The U.S. Court of Appeals for the Fifth Circuit upheld Judge Hendrix’s
ruling.

In Idaho, a near-total ban on abortions had gone into effect after the court
overturned Roe v. Wade. The Biden administration sued Idaho in August 2022, a
few weeks before the state’s law was set to take effect. The federal law, it
said, should trump the state law when the two directly conflict.

A federal judge in Idaho, B. Lynn Winmill, who was appointed by President Bill
Clinton, temporarily blocked part of the state’s ban. He wrote that Idaho could
not penalize doctors for acting to protect the health of endangered mothers.

In the fall of 2023, a three-judge panel from the U.S. Court of Appeals for the
Ninth Circuit put the ruling on hold and reinstated the ban. But that decision
was ultimately overridden by an 11-member panel of the appeals court, which
temporarily blocked Idaho’s law as the appeal continued.

Idaho asked the Supreme Court to intervene, and the court reinstated the ban and
agreed to hear the case.

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