Developments in Abortion, Autonomy, and Access:
In this week’s Digest, we take an in-depth look at the Supreme Court’s oral arguments in Idaho v. United States, a consolidated case that asks whether Idaho can enforce its restrictive abortion ban despite federal law obligating hospitals to provide broader emergency care to every person. We also detail important reproductive health and bodily autonomy news from Arizona and elsewhere around the country. Please read to the end for all of the news that you need to know.
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Reproductive Rights and Health Equity News:
This Week’s Must Read:
If you read nothing else this week, we highly recommend that you take a few moments with this Associated Press report detailing accounts of pregnant people being turned away from emergency rooms post-Dobbs. The stories were obtained using Freedom of Information Act (FOIA) requests into pregnancy-related EMTALA complaints, and they show an appalling pattern of pregnant people, particularly those in states that have enacted harsh abortion bans, being denied urgent emergency care with catastrophic results.
Legal Analysis:
Arizona:
After three failed attempts in as many weeks, the Arizona House has finally voted to repeal a “zombie” civil war-era total abortion ban, advancing the effort to the Senate, where it stands a good, but not certain, chance of passage. Repealing the law would reinstate Arizona’s previously enforced 15-week abortion ban.
Earlier this month, the Arizona Supreme Court issued an opinion allowing the state to enforce a long-dormant total abortion ban, passed in 1864 before Arizona was even a state. The court’s decision threw prominent Republican politicians into fraught political waters, particularly as voters are poised to vote on an abortion ballot measure in November. And, calls for the legislature to repeal the ban have been ongoing since the court’s ruling, including from anti-abortion Senate candidate Kari Lake (although she has now flip-flopped on the issue several times).The decision also drew widespread criticism from across the country, including an announcement by California Governor Gavin Newsom that he would introduce legislation easing the way for Arizonans to be able to practice reproductive medicine in California.
Idaho and EMTALA:
This Wednesday, the U.S. Supreme Court heard oral arguments in Idaho v. United States, the second abortion case that the Court heard this term. The consolidated case turns on the question of whether Idaho can enforce its total abortion ban over conflicting federal law. After the Dobbs decision upended abortion rights in the U.S., Idaho passed one of the most severe abortion bans in the country. As relevant to this case, the state’s law only permits abortion when it is necessary to prevent the death of the pregnant person. It does not include an exception to preserve the pregnant person’s health–a facet of the law that state legislators have defended using arguments grounded in fetal personhood.
In response to Dobbs and subsequently enforced state-level abortion bans, the U.S. Department of Health and Human Services issued guidance reminding hospitals of their obligations to treat patients under the Emergency Medical Treatment and Active Labor Act (“EMTALA”), regardless of state abortion bans. That guidance noted that state laws that are in conflict with EMTALA are preempted by the federal law to the extent of the conflict. EMTALA requires all hospitals that receive Medicare funding to stabilize any patient that presents with an emergency, regardless of their ability to pay or any other status. It was enacted in response to widespread “patient dumping,” the practice of offloading uninsured, low-income or undocumented patients to other institutions, resulting in devastating health outcomes. EMTALA’s exam and stabilization requirements are triggered not only in cases of possible death, but also to preserve the health of the patient and ensure their condition will not deteriorate as a result of hospital inaction, putting it in direct conflict with Idaho’s requirement that a provider not act unless it is necessary to prevent the patient’s death. In light of this conflict, the Biden administration sued Idaho, arguing the state’s abortion ban could not stand with respect to abortions performed in emergencies pursuant to EMTALA.
Similar to the mifepristone case that we have reported on previously in this Digest, the answer to this case should be a simple one: there is a state law and a federal law, and the two are in conflict with each other–under basic supremacy clause principles, and the express preemption language contained within EMTALA’s text, the federal law takes precedence. But, with a Supreme Court willing to upend settled law in order to restrict abortion, the odds of a majority of the justices embracing this clear truth appear low.
During oral arguments, the justices divided along ideological and gender lines, with the male conservatives seeming willing to entertain the idea that EMTALA does not preempt Idaho’s abortion ban. Justice Alito, for example, specifically raised the question of whether EMTALA imposes an equal obligation of stabilization for both the pregnant patient and the fetus. This idea of fetal personhood is inconsistent with both EMTALA’s intent and purpose, as well as the actual practice of emergency medicine. As Solicitor General Elizabeth Prelogar explained in response to Justice Alito, the duty under EMTALA runs to the individual patient, meaning that a requirement to stabilize a pregnant patient’s fetus expands the care available to the pregnant individual but does not create an independent and separate duty to the fetus. Prelogar further explained how in practice, in the case of a previable fetus, you cannot stabilize the fetus without stabilizing the pregnant person, as the fetus's life is dependent upon the pregnant person’s. In the case of a viable fetus, the standard-of-care treatment option in such an emergency would be delivery, not abortion.
The justices also went back and forth with Idaho’s attorney Joshua Turner on the question of whether the state’s ban is more restrictive than EMTALA’s requirements. By its very language, it is: the Idaho law restrains a clinician from taking action to resolve an emergency medical condition until and unless that clinician makes a good faith determination that such intervention is necessary to prevent death. EMTALA’s language imposes a broader obligation of care that encompasses impairment of a person’s health. Turner seemed unwilling to admit outright that Idaho’s law would tie doctors’ hands in certain dire circumstances, pivoting away from the question to say that such scenarios “implicate deeply theological and moral questions” and that Idaho had its own standard of care through which it has “drawn the line” on these issues. He continued by attempting to argue both that there is a direct conflict between the laws such that the federal government cannot force the state to comply with EMTALA, and that Idaho’s law is not as restrictive as the government represents, so doctors complying with Idaho law remain in compliance with EMTALA.
While the male conservative Justices appeared open to Idaho’s arguments, the female Justices (including Justice Barrett at points), hammered Idaho’s counsel with questions designed to get at the heart of exactly what Idaho is telling its doctors they can and cannot do and how that will impact the availability of emergency healthcare. At several points, the Justices described real-world cases of women who have faced devastating health consequences as a result of being denied an abortion and pressed Turner on how Idaho’s law would handle such cases. Justice Kagan pointed out that “there’s a significant number [of such cases] where the woman’s life is not in peril, but she’s going to lose her reproductive organs” unless an abortion is permitted, and Justice Barrett pressed on the question of whether doctors could face prosecution for providing care in those circumstances. In his responses, Turner seemed not to understand that the uterus was an organ.
In spite of the deck seeming stacked against Idaho on legal, clinical and ethical grounds, numerous Justices raised issues that signaled their willingness to do whatever it takes to allow the state to prevail. Justices Thomas, Alito and Barrett all implied that state criminal law might supersede federal Spending Clause legislation. Justice Gorsuch questioned the U.S.’s right to injunctive relief and argued that such a right could lead to government usurping state powers. He raised this theory sua sponte, despite none of the lower courts raising a jurisdictional challenge to the government’s argument of object preemption, where a state law frustrates Congress’ purpose for a federal law. And finally, Justice Alito accused Solicitor General Prelogar of trying to “get out of” his analysis that EMTALA’s use of the term “unborn child” imposes upon the hospital a separate and zero-sum duty to the fetus.
By the end of the two-hour arguments, the majority of the Justices appear poised to find a way to side with Idaho, with potentially devastating consequences for both abortion care in Idaho and emergency medicine in general. Since Dobbs, three rural hospitals in Idaho have closed their labor and delivery units, and one in four OB-GYNs in the state have either retired or moved out of the state. Recruitment for medical professionals in the state has also faced a crisis, with fewer and fewer providers willing to practice under the severely restrictive legal landscape. And physicians have spoken out about how their own practice would be impacted by a restrictive ruling, and how the Supreme Court misunderstands the practice of medicine.
More News in Access:
The Tennessee legislature has advanced a bill that would make “abortion trafficking” a crime in the state; it will now go to the governor’s desk for signature. If passed, the bill would criminalize assisting a minor in traveling to obtain an abortion without their parent or guardian’s permission, and mandate prison time for those found in violation. The bill would apply even to those minors who have been subjected to sexual assault by one of their parents–the very person who must consent to the abortion. One Democratic senator said that the bill “sounds like the Handmaid’s Tale.”
As Virginia Democrats try to protect contraception access in the state, Virginia Governor Glenn Youngkin has introduced a substitute amendment that would weaken the bill. In his suggested substitute, Youngkin changed it to a Section 1 Bill, which lacks the same legal heft, and removed a right of action for violations of the law. We will continue to report on this bill as it progresses through the legislature.
A Colorado group has gathered enough signatures to place an abortion rights measure on the state’s ballot in November. Although abortion is currently legal in Colorado, enshrining that right into the constitution would give it permanence. Meanwhile, an anti-abortion measure has failed to garner enough signatures to move forward.
Kansas Governor Laura Kelly has vetoed a ban on gender-affirming care for minors; however, the Republican majority in the state legislature likely has enough votes to override her veto.
Kentucky democrats were unable to force through a vote to add exceptions for rape or incest to the State’s abortion ban before the end of the state’s legislative session. The bill was never assigned to a committee, despite clear Senate rules requiring this.
Iowa has asked the state Supreme Court to allow it to enforce the state’s blocked 6-week abortion ban; the law has been placed on hold while litigation assessing its constitutionality plays out. The high court could either rule on the laws’ constitutionality or allow it to go back into effect and send it back for further consideration by the lower courts.
Florida advocates are ramping up their efforts to get voters to say “yes on 4,” the abortion initiative that will appear on the November ballot. Meanwhile, opponents of abortion rights have indicated that, if the initiative passes, they are ready to file a lawsuit challenging it using fetal personhood arguments that the state Supreme Court has indicated it is open to. Republicans say they’re ready to file a lawsuit.
The Supreme Court has allowed Idaho’s ban on gender-affirming care to take effect during the pendency of litigation.
Indiana Republicans are fighting to make individual reports detailing abortion care a matter of public record, infringing upon patient privacy in an extremely abortion-hostile state.
The White House has moved to put federal protections in place for patient’s reproductive health care information under HIPAA, prohibiting disclosure of such information for investigations into patients or providers in states where the relevant care is legal.
The U.S. Department of Health and Human Services (HHS) issued its final rule on Title IX protections last Friday, clarifying that its sex discrimination protections cover LGBTQ+ students, people in need of abortion, parents of all sexes and victims of harrassment and assault both on and off campus. The rule’s issuance was delayed while the agency processed and addressed the over 156,000 comments it received on its Notice of Proposed Rulemaking (NPRM) before the deadline of May 15, 2023. On Monday, Louisiana Education Superintendent Cade Brumley told the state’s schools to ignore the new rules, followed swiftly by his counterparts in Oklahoma, South Carolina and Florida. Extremist lawmakers have threatened to sue to keep the rule from going into effect on August 1.
The ACLU has sued Montana over its new policy of requiring an amended birth certificate in order to have gender markers changed on a person’s driver’s license.
Ohio Republicans have introduced a new bill that would further restrict spending related to abortion. Although Ohio already severely limits any state funding of abortion services, this bill is unique in that it would not limit the prohibition to non-therapeutic abortions, and it is also not limited to state-funded entities.
Missouri anti-abortion activists are working to dissuade voters from approving an abortion rights ballot initiative, using false and misleading claims about the scope of the measure.
Maine’s Governor Janet Mills has signed into law protections for providers of both abortion and gender-affirming care, in an attempt to solidify the state’s status as a stronghold for bodily autonomy.
Seattle Children’s Hospital and Texas Attorney General have reached a settlement agreement in Paxton’s attempt to seize records relating to minors receiving gender-affirming care. The hospital, which attested that it does not provide in-person care to minors in Texas or virtually from Washington will not have to turn over any records and will rescind its business license in Texas.
A new report finds that young people are opting for permanent contraception methods such as tubal ligation and vasectomies at higher rates post-Dobbs, likely a reflection of anxiety about the lack of options in the event of an unplanned or medically complicated pregnancy.