An 11-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Tuesday in a case that will decide whether doctors can perform emergency abortions without facing criminal penalties in Idaho, a state with a near-total abortion ban.
The U.S. Department of Justice sued Idaho in 2022 to prevent it from enforcing its criminal abortion ban on emergency room doctors who may have to perform an abortion when a patient is at risk of infection or other potentially solemn health problems during pregnancy.
The Justice Department said prosecuting doctors in such circumstances would violate the federal Emergency Medical Treatment and Labor Act, or EMTALA, which requires Medicare-funded hospitals to treat patients who come to the emergency room regardless of their ability to pay.
Idaho’s ban includes an exception intended to save the life of a pregnant patient but is not intended to prevent harmful health outcomes, including loss of future fertility, which poses a risk in the event of severe infection or bleeding. Without greater clarity in the law, doctors say they cannot confidently judge when to intervene safely to save someone’s life and what constitutes a good faith determination. Rather than take the risk, high-risk obstetric specialists do it patients transported by air to an out-of-state facility that can freely perform the procedure before it becomes a life-threatening condition. In 2023, officials at St. Hospital Luke, the largest hospital system in the state, said such transfers had only occurred once at their facilities. But six patients were transferred between January and April, when the U.S. Supreme Court decided to take up the case and lifted an order blocking the emergency enforcement of the ban.
“This is not an emergency care law,” argues a lawyer for the Idaho Legislature
Idaho lawyers have argued that the federal EMTALA does not supersede state law banning abortion and say it calls for providing the “unborn child” with stabilizing treatment. They also claim that the doctors describe situations in which an abortion may be necessary because the stabilizing treatment qualifies under Idaho’s exception to save a person’s life.
John Bursch, an attorney for the conservative legal group Alliance Defending Freedom, argued the case on behalf of Idaho, and attorney Taylor Meehan represented the Legislature in defense of the law.
Judge Salvador Mendoza Jr., an appointee of President Joe Biden, asked Meehan whether there had been any changes to Idaho law that would clarify emergency situations in which abortion would be acceptable and the doctor would not be subject to prosecution. Meehan said no.
“The more you put into the statute, the more you start to limit the physician’s belief in good faith,” Meehan said.
Mendoza asked how doctors are supposed to know that their actions will not be punishable unless the law states otherwise, to which Meehan replied that it is not intended to address such situations.
“This is not an emergency care bill, it is a bill that prohibits criminal elective abortions in the first place. It’s not about treatment,” Meehan said.
Judge Lawrence VanDyke, appointed during President-elect Donald Trump’s first term, questioned the necessity of six air transfers that occurred while the order was not in effect. VanDyke asked attorney Lindsay Harrison, who represented the St. Patrick’s Health System. Luke in Idaho why these six were sent out of state. Harrison said five of them had premature rupture of membranes and one had pre-eclampsia – a risky condition associated with high blood pressure.
“Your argument is that if a mother wants to kill her child, even though there is no need to prevent it (death), then she needs to be airlifted, right?” VanDyke said.
Harrison said the problem is that the doctor cannot immediately determine whether a pregnant patient’s life is at risk from the disease, so she is sent to a place where abortion is legal and a full range of options are available. care.
The circuit panel will likely issue an opinion within the next few months
Tuesday’s appeals court hearing came six months after the U.S. Supreme Court the judges decided in the summer it was too early for them to make a decision and they took the case back to a lower court. But it began in 2022, shortly after the Supreme Court’s Dobbs decision, which overturned Roe v. Wade and returned states to regulate abortion procedures.
The number of appellate judges in the case was larger than usual because it is being heard as an “en banc” case. A three-judge panel initially decided to lift a preliminary injunction issued by a district court in Idaho, putting emergency room doctors at risk of prosecution under the ban.
The 9th Circuit is not required to issue an opinion by a specific date, although it will most likely rule within the next few months.
The panel may decide to leave the order in place or to quash it and remand the case to the district court in any judgment. The case may also be completely dismissed in January, after Trump is sworn in and recent leadership takes over the Department of Justice. In such a situation, the recent plaintiff would have to start the entire case all over again.
The en banc panel included Chief Justice Mary Murguia, an appointee of former Democratic President Barack Obama, as well as one other Obama appointee, two of whom were appointed by Biden, four who were appointed by Trump during his first term and two who were appointed by the former president George W. Bush’s Republican Party and former Democratic President Bill Clinton’s appointee.
