Emergency Abortion Care to Preserve the Health of Pregnant People: SCOTUS, EMTALA, and Beyond

After much anticipation, SCOTUS has dismissed the second abortion-related case it heard this term, Moyle v. United States (consolidated with United States v. Idaho). A majority of the justices decided that the Court should not have taken the case at this time and, because of that, there is no ruling on the core questions presented and the case returns to lower courts for further proceedings. The decision also reinstates a District Court’s order blocking enforcement of the Idaho abortion ban where it conflicts with EMTALA, the federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms. Idaho – like 5 other states – has an abortion ban that includes an exception to save the life of the pregnant person, but no exception for preserving health. Today’s decision does not affect enforcement of bans in any other states. This decision means the Court did not rule on the merits on any of the abortion-related cases this term, a topic of high significance to many voters ahead of the 2024 presidential elections.

How did the Court Rule?

The Supreme Court’s June 27 per curiam decision does not have a majority opinion. Instead, the decision is constituted by a series of concurring and dissenting opinions. Collectively, a 5-4 majority agrees the case should be dismissed as improvidently granted, meaning the Court should not have taken it in the first place, and a 6-3 majority holds that the preliminary injunction blocking enforcement of the Idaho ban where it conflicts with EMTALA should be reinstated.

However, this ruling does not necessarily mean that the 6-Justice block agrees about whether EMTALA preempts state law. Justices Sotomayor, Kagan, and Jackson wrote in their concurring opinion that EMTALA requires hospitals to provide abortion care when needed to stabilize the health of the pregnant patient and because Idaho’s abortion ban does not make an exception in cases where the health of the pregnant person is at risk, it is preempted. Justices Barrett, Kavanaugh, and Roberts, on the other hand, stated there is a textual disagreement between the two laws, but did not indicate whether they believe EMTALA preempts Idaho’s abortion ban. The three dissenting Justices (Alito, Thomas, and Gorsuch) wrote that EMTALA does not preempt Idaho’s law because EMTALA requires hospitals to protect the health of the fetus at every stage and does not require the provision of emergency abortion care. Justices Alito and Thomas went as far as to indicate in their dissent that they believe states can prioritize the health of the fetus over that of the pregnant person. They state that the lack of health exception in the state’s ban is a “balance reflect[ing] Idaho’s judgment about a difficult and important moral question” and Idaho is allowed to strike its own balance.

What Happens Next?

The Supreme Court’s decision returns the case to the 9^th Circuit Court of Appeals for further proceedings and reinstates a District Court’s order blocking enforcement of the Idaho ban where it conflicts with EMTALA. The District Court order had been affirmed by the 9^th Circuit Court of Appeals but put on pause by the Supreme Court when it agreed to hear this case. This order allows Idaho physicians to provide abortion care when needed to stabilize the health of pregnant patients in hospital emergency rooms, and it will continue to do so until the case ends. This case may return to the Supreme Court after the 9^th Circuit Court of Appeals issues a final ruling.

However, in a different case, Texas v. Becerra, the federal government has asked the Court to answer the same question of whether EMTALA preempts state abortion bans. In this latter case, the state of Texas sued the Department of Health and Human Services (HHS), arguing that EMTALA does not authorize the federal government to “compel” clinicians to provide abortion care. A federal district court in Texas issued an order permanently blocking HHS from enforcing EMTALA as requiring abortion care when Texas law prohibits it, and the 5^th Circuit Court of Appeals upheld this order in January 2024. The Supreme Court has not yet announced if it will take the case. It may decide as it did in United States v. Idaho and order for proceedings to continue in the lower courts before it hears the case. Depending on how the cases proceed, the Court may consider arguments about EMTALA again in either the Texas or Idaho case.

Nevertheless, whether the Supreme Court considers this issue in the near future may be affected by the outcome of this year’s Presidential election. Since EMTALA is a federal law, the federal government must choose to continue litigating the cases regarding the law for either of them to proceed and eventually come before the Supreme Court again. The Biden administration has defended in court its guidance stating that, per EMTALA, hospitals must provide emergency abortion care if it is necessary to stabilize a patient’s condition and has prioritized and expanded enforcement efforts in this area. Should Donald Trump win the election, his Administration could issue guidance stating that it does not interpret EMTALA to require hospitals to provide abortion care when it is necessary to stabilize a pregnant patient’s condition and dismiss the Texas and Idaho EMTALA cases. Project 2025 – a series of proposals for a new administration from a broad coalition of conservative organizations and widely seen as a blueprint for a next Trump administration – specifically calls for rescinding the Biden Administration’s EMTALA guidance and ending federal investigations into cases of alleged refusals to perform abortions. Trump himself has not publicly stated how he views EMTALA preemption of state abortion bans in emergency cases. KFF polling finds that the vast majority of the public (86%), across party lines, supports protecting access to abortions for people experiencing pregnancy-related emergencies.

What are the Implications of the Ruling?

For the provision of emergency abortion care

The reinstatement of the district court’s order blocking enforcement of Idaho’s abortion ban where it conflicts with EMTALA – in situations that jeopardize the health of the pregnant person – means pregnant people in Idaho may again be able to receive emergency abortion care to preserve their health. In her concurring opinion, Justice Kagan highlighted the consequences of the lack of health exception in Idaho during the time the district court’s preliminary injunction was on pause, noting that “[t]o ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).”

However, this ruling has no effect on the approximately 8,597,200 women of reproductive age living in the five other states (Arkansas, Mississippi, Oklahoma, South Dakota, and Texas) that have abortion bans without a health exception. In these other states, pregnant patients needing an emergency abortion to preserve their health will be denied that care until their conditions deteriorate to the point that an abortion is necessary to prevent their death.

Of note, even in states with abortion bans that include a health exception, pregnant people may not be able to receive emergency abortion care, because these exceptions are often narrow and do not defer to the doctor’s medical judgment that an abortion qualifies for an exception under state law, which has made clinicians hesitant to provide care that could later be prosecuted and reviewed by a court. In a KFF national survey, the majority of OBGYNs practicing in states where abortion is banned said that the Dobbs ruling has worsened their decision-making autonomy (60%) and ability to practice within the standards of care (55%). In these states, this chilling effect will persist, discouraging physicians from providing evidence-based emergency medical care, even in situations where they cannot ultimately prevent the loss of the pregnancy. This means pregnant patients from states with abortion bans have had to leave their states to receive emergency abortion care – just as many did when the preliminary injunction was blocked in Idaho – and this trend will most likely continue.

For other cases

There are other cases underway arguing that the US Constitution and state constitutions include protections for people needing emergency abortion care, which are not affected by the Court’s decision today, since they do not rely on EMTALA. In May 2024, an Idaho physician filed another challenge to the exceptions in Idaho’s abortion laws in federal court, Seyb v. Members of the Idaho Board of Medicine. In this case, the physician contends that Idaho’s abortion laws violate the due process and equal protection clauses of the 14^th Amendment of the US Constitution by criminalizing abortion care for many medically indicated circumstances and conditions. This case may also reach the Supreme Court to determine whether the US Constitution provides any protections for people needing emergency abortion care.

There are also three cases in state courts (Idaho, Indiana, & Tennessee) challenging the narrowness of the exceptions in state bans, arguing that the laws violate their respective state constitutions. There was a similar case in Texas, but the Texas State Supreme Court recently held that there are no state constitutional protections that confer a right to abortion beyond the life exception the law outlines. The outcome of these cases may affect the provision of abortion care in cases of pregnancy-related emergencies, but the reach of this will be limited to their own state lines.

Looking ahead

At the core of this case, Idaho was asking the court to allow the state to recognize and protect the rights of a fetus over the health of the pregnant person. The statements in Justice Alito’s dissent indicating that states can strike their own “balance” when the health or life of a pregnant person is threatened – and therefore, prioritize the rights of a fetus over the health of the pregnant person – may open the door to future cases further recognizing the rights of embryos or fetuses. Justices Barrett, Roberts, and Kavanaugh did not indicate whether they believe states can ban abortion in cases that threaten the health of the pregnant person, failing to rule out that they may be amenable to such an argument. While states have focused on restricting abortion care, this could have broader implications for a pregnant person’s right to make decisions about how they want to manage their own pregnancy, including the right to preserve their own health, and clinicians’ autonomy to manage pregnancy-related medical emergencies based on accepted standards of care.