Since Roe v. Wade was overturned in 2022, women experiencing pregnancy complications have been turned away from hospitals. In Idaho, where an abortion ban took effect immediately after the decision, patients have been denied necessary healthcare, leading to at least six pregnant people needing to be airlifted out of state for abortion services. It’s difficult to determine how many people have died or faced complications during childbirth, as Idaho is the only state that has disbanded its maternal mortality committee, which was tasked with investigating such cases. Still, research shows that the United States is currently experiencing a maternal mortality crisis.
In the face of rising mortality rates, reproductive justice advocates have turned to the Emergency Medical Treatment and Labor Act (EMTALA) to help safeguard access to emergency abortions. However, the law’s authority is contested.
The Origins of EMTALA
Enacted during the Reagan administration in 1986, EMTALA mandates that hospitals receiving Medicare funding provide emergency services to all patients who arrive at their facilities. This law requires hospitals to conduct screenings for emergency medical conditions when requested by patients and to either provide stabilizing treatment or arrange for transfer to another facility if they cannot offer such care, or if the patient requests it.
When a screening exam under EMTALA identifies an emergency medical condition, hospital staff must “stabilize” the patient, that is, “provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from the facility.”
EMTALA was initially enacted to address “patient dumping,” the practice of refusing treatment to patients unable to pay. Since then, case law under EMTALA has highlighted its significance for emergency care for pregnant women and their fetuses, particularly following notable cases where women in labor were denied hospital access.
“Its purpose is to ensure that all patients, regardless of wealth or status, receive medical treatment in emergency situations,” attorneys Alicia K. Dowdy, Gail N. Friend, and Jennifer L. Rangel explained in 1995. “Although concerns regarding the availability of emergency medical care for the poor or uninsured prompted the drafting of EMTALA, the statute applies to the treatment of all patients, regardless of a patient’s ability to pay or insurance coverage.”
“Under the law, no matter where you live, women have the right to emergency care—including abortion care.”
The Battle over EMTALA
Following the Supreme Court’s 2022 decision overturning the constitutional right to an abortion, President Biden issued an executive order to protect continued access to reproductive healthcare. This order clarified that under EMTALA, healthcare providers are still obligated to offer abortion care in emergency situations.
“HHS [the Department of Health and Human Services] will take steps to ensure all patients—including pregnant women and those experiencing pregnancy loss—have access to the full rights and protections for emergency medical care afforded under the law, including by considering updates to current guidance that clarify physician responsibilities and protections under the Emergency Medical Treatment and Labor Act (EMTALA),” the White House stated in a 2022 fact sheet. In response to the executive order, HHS issued guidance affirming that abortion services are covered under EMTALA’s definition of emergency medical care.
In a July 2022 letter to healthcare providers, HHS Secretary Xavier Becerra clarified that EMTALA requires Medicare-participating hospitals to provide every patient with appropriate medical evaluation, examination, stabilizing care, and potential transfer, regardless of state regulations governing specific procedures. Becerra noted that stabilizing care includes medical and/or surgical interventions, such as abortion. If a state law restricts abortion without adequate exceptions for the health or life of the pregnant person—or if such exceptions are narrower than EMTALA’s definition of emergency medical conditions—EMTALA prevails over state laws.
“Under the law, no matter where you live, women have the right to emergency care—including abortion care,” Becerra said. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care. Protecting both patients and providers is a top priority, particularly in this moment.”
But ongoing legal challenges have raised concerns about the statute’s future.
In August 2022, the Department of Justice (DOJ) filed a lawsuit arguing that EMTALA overrides Idaho’s Defense of Life Act which bans nearly all abortions. The case, Idaho and Moyle, et al. v. United States, cites the Supremacy Clause of the United States Constitution, which stipulates that federal law takes precedence over state law in specific domains. A district court ruled in favor of the DOJ, determining that Idaho’s abortion ban violated EMTALA, and partially halted the implementation of the law.
In September, 2023, a three-judge panel from the Ninth US Circuit Court of Appeals then permitted Idaho to enforce its ban. But in November, the entire Ninth Circuit overturned the panel’s decision, granting the DOJ’s request to halt the law while the case was pending.
State abortion restrictions have contributed to the United States having one of the highest maternal mortality rates among developed nations.
Idaho, represented by the Alliance Defending Freedom—designated as a hate group by the Southern Poverty Law Center—appealed to the Supreme Court, aiming to overturn this decision and implement the full abortion ban.
In April, 2024, the US Supreme Court heard the case, but ultimately chose not to resolve the conflict between these laws, dismissing the case as “improvidently granted.” While doctors in states with abortion bans are currently required to comply with EMTALA, the future of this federal law is uncertain.
The Abortion Landscape in Idaho
State abortion restrictions have contributed to the United States having one of the highest maternal mortality rates among developed nations. And according to a study published in the American Journal of Preventive Medicine, states with abortion restrictions see a 16 percent increase in the infant mortality rate.
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This research supports prior findings correlating abortion restrictions with higher rates of maternal and infant mortality, which disproportionately affect Black communities. While many state abortion bans include “exceptions” for life-threatening pregnancy complications, some hospitals have refused to provide emergency abortion care for fear of facing prosecution.
Even before Idaho’s abortion ban took effect, the state was grappling with a maternal mortality crisis. According to the latest available Maternal Mortality Review Committee (MMRC) reports, the number of Idaho women who died from pregnancy-related issues doubled between 2019 and 2020. The crisis has likely worsened due to the abortion ban and its effects on healthcare providers and obstetric departments in the state. But Idaho disbanded MMRC in 2021, making information on maternal deaths under the ban harder to gather.
Idaho’s Defense of Life Act lacks a provision allowing abortion as stabilizing care for emergency medical conditions, which can include ectopic pregnancies, severe preeclampsia, newly diagnosed cancer that needs immediate treatment, an intrauterine infection called chorioamnionitis, a placental abruption, or lethal fetal abnormalities that may lead to a nonviable pregnancy.
While it includes an exception solely to preserve the life of the pregnant person, physicians have expressed concerns that the state’s abortion ban is vaguely worded, making it challenging to discern when providing an abortion as a medical intervention during an emergency is permissible without risking prosecution. Health professionals prosecuted under the law could face imprisonment ranging from two to five years and the potential revocation or suspension of their medical license.
This has resulted in patients being denied care, with at least six people in Idaho needing to be airlifted out of state to access abortion care. Some doctors have resorted to unnecessary and risky procedures to avoid potential legal repercussions.
Additionally, many doctors have decided to leave the state because of this law. A study revealed that Idaho has experienced a 22 percent decrease in practicing obstetricians within the 15 months following the implementation of the state’s abortion ban. And due to the “legal and political climate” in the state, at least one hospital has closed its obstetric department entirely.
A report published by the Idaho Physician Well-Being Action Collaborative (IPWAC) highlights that the reduction in available physicians and obstetric programs is expected to increase the risk of maternal mortality. “CMS [Centers for Medicare and Medicaid Services] data has Idaho at the 10th percentile of maternal pregnancy outcomes,” the report notes. “This means that 90 percent of the United States has better maternal pregnancy outcomes than Idaho.”
Idaho’s abortion ban currently forces pregnant individuals to travel elsewhere for abortions, drawing resources from abortion funds and services in other states.
Healthcare providers in Idaho are already under significant pressure, with the state lagging in the number of physicians per capita. An Idaho Department of Health and Welfare report reveals that more than 82 percent of areas in Idaho suffer from a shortage of primary care professionals. Idaho also ranks among the states most affected by the nationwide shortage of ob-gyns. This shortage is exacerbated by the lack of an ob-gyn residency program within the state, meaning every ob-gyn practicing in Idaho must be recruited from out of state.
St. Luke’s Health System asserts in an amicus brief that the state’s abortion ban has worsened this shortage by deterring medical professionals from practicing in Idaho. The study indicates that over 50 obstetricians have left Idaho since August 2022, leaving around 210 obstetricians to serve more than 962,000 women in the state.
The Future of Abortion Care in Idaho and Beyond
The Idaho case study underscores the vital role of EMTALA in guaranteeing access to emergency abortions in all 50 states, including those where abortion is legal.
Idaho’s abortion ban currently forces pregnant individuals to travel elsewhere for abortions, drawing resources from abortion funds and services in other states. For those unable to afford to travel, the cost burden falls on nonprofit abortion funds, which have seen a rise in demand for time-sensitive emergency care, according to the Chicago Abortion Fund (CAF) in an amicus brief.
CAF asserts that Idaho’s abortion ban jeopardizes the ability of these organizations to remain operational: “When a patient presents with an emergent need for a stabilizing abortion, Idaho’s law prevents providers from offering the necessary healthcare. As a result, patients are turned away, even if they cannot afford to travel to another state to obtain the needed care. Patients then look to organizations like CAF and the [Complex Abortion Regional Line for Access] CARLA program, which must scramble against a ticking clock to secure life-saving care for the patient.”
This situation leads to unequal and unfair distribution of abortion funds and services, thereby compromising the distributive justice of reproductive healthcare in the United States.
In April 2024, the leadership of the American Medical Association (AMA) issued a statement condemning Idaho’s abortion ban for undermining core medical ethics. The AMA declared that it is “reckless for Idaho to tell emergency physicians that they must ignore their moral and ethical standards and stand by while a septic patient begins to lose kidney function, or when a hemorrhaging patient faces only a 30% [chance] of death.”
Despite the continued and protracted fight to restore abortion as a constitutional right, there are policy solutions that the federal government can use to help safeguard EMTALA.
For example, the Centers for Medicare and Medicaid Services (CMS) could make their funding contingent upon EMTALA compliance. Requiring hospitals to comply with EMTALA would affect 39 hospitals in Idaho that receive Medicare funding and offer emergency services. From 2018 to 2020, these hospitals’ emergency departments received approximately $74 million in CMS funding. EMTALA may already carry the power to impose penalties, but funding power must be used to protect emergency abortions and allow healthcare providers to provide the care pregnant people deserve.