Oregon Attorney General Ellen Rosenblum and nearly two dozen other Democratic-led states urged the U.S. Supreme Court to preserve the ability of emergency room doctors to provide abortions, arguing that failing to do so would have devastating effects for their health care systems and women across the country.
At issue is whether a near-total Idaho abortion ban conflicts with the Emergency Medical Treatment and Labor Act, a federal law that governs how hospitals must provide emergency care for patients facing dangerous medical conditions.
While the Idaho law forbids all abortions with narrow exceptions for rape, incest and imminent death, EMTALA requires doctors to provide “stabilizing care” for patients with significant health risks, not just fatal prognoses. And for pregnant patients, that care has long been understood as including abortions when necessary to stave off critical conditions, like preeclampsia and hemorrhage.
In August 2022, the Biden administration sued Idaho over its ban and quickly won a ruling from a federal district that froze the law. In January, the U.S. Supreme Court paused the lower court’s decision and agreed to hear an appeal in April.
Rosenblum and 23 other Democratic attorneys general called on the high court to reaffirm the injunction against the Idaho law, saying that siding with Idaho is the wrong move.
In an amicus brief filed on Friday, the Democratic attorneys general warned that weakening the protections in EMTALA would encourage other anti-abortion states to further restrict their care, leading to strained health care systems in states that choose to preserve access — on top of an already unprecedented surge in out-of-state demand.
“Allowing States like Idaho to eviscerate EMTALA’s nationwide guarantee of stabilizing emergency care and protection against patient dumping will drive many pregnant patients to amici States for emergency abortion care to preserve their health,” reads the brief. “That influx may result in more crowded waiting rooms, increased delays for urgent healthcare services, and overall strains on many amici States’ healthcare systems.”
And forcing patients to travel out-of-state for emergency care will only result in increased burdens for the hospitals that do end up providing treatment, wrote the attorneys general. One Tennessee woman was denied an emergency abortion in her home state and transported six hours away to North Carolina by ambulance to receive the procedure, where she arrived with dangerously high blood pressure and signs of kidney failure. The woman’s doctor in Tennessee hesitated to provide an abortion because of a state law that makes it a felony to do so.
That hesitancy from medical professionals to act under threats of criminalization was cited by the attorneys general as a key reason to preserve the protections of EMTALA. The act directs hospitals that participate in Medicare and have emergency rooms to offer stabilizing care to patients that arrive with critical health conditions before discharging or transferring them.
Delayed or denied care would be in direct violation of that mandate. But numerous abortion bans passed across the country have had that exact effect.
The amicus brief pointed to a study in Texas, which has a six-week abortion ban, that found that the rate of maternal morbidity for women in the state with pregnancy complications was nearly double that of other women in states where doctors were allowed to terminate when dangerous health risks arose. Women in the Texas study received observation only care until they could be deemed at risk of death, their fetus had no cardiac activity or they spontaneously went into labor, and because of that delay they suffered hysterectomies, hemorrhages, and admissions into the intensive care unit.
“Prohibiting providers from offering medically necessary, evidence-based emergency abortion care to their pregnant patients poses a direct threat to those patients’ lives and well-being — precisely the sort of harms that Congress designed and enacted EMTALA to avoid,” wrote the attorneys general.
Similar briefs were also filed by U.S. Senate and House members. Oregon’s U.S. Sen. Ron Wyden co-led the Senate version, which asked the Supreme Court to affirm the district court’s decision that the law requires Medicare-participating hospitals to provide abortion care when it is necessary as emergency medical treatment.
It said “respecting the supremacy of federal law is about more than just protecting our system of government; it is about protecting people’s lives. If this court allows Idaho’s near-total abortion ban to supersede federal law, pregnant patients in Idaho will continue to be denied appropriate medical treatment, placing them at heightened risk for medical complications and severe adverse health outcomes.”
Other Democratic U.S. senators, including Chuck Schumer of New York, Patty Murray of Washington and Dick Durbin of Illinois sponsored the initiative with 45 U.S. senators signing on.
The U.S. House brief, also by Democrats, was led by Hakeem Jefferies, Jerry Nadler and Yvette Clark of New York; Frank Pallone of New Jersey; Richard Neal of Massachusetts; Diana DeGette of Colorado; and Barbara Lee of California. It was signed by 209 representatives.
Among Democrat-led states, Oregon has among the least barriers to having an abortion, and state law mandates that they be provided without out-of-pocket costs for most people. Most are performed in clinics.
Wyden and Rosenblum have repeatedly endorsed Oregon’s law and backed open access to abortions. Last week, during the hearing at the U.S. Supreme Court in a case brought by anti-abortion conservative groups against an abortion pill, Wyden took part in a news conference with Planned Parenthood in Portland while Rosenblum was on the steps of the court in Washington D.C. to show her opposition to the suit.
“It was an honor to be with so many champions of reproductive justice on the front lines of the fight for access to essential health care,” Rosenblum said later in a news release.
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Rosenblum should stop spending taxpayer money presenting straw women to the court. This is not a legal issue as presented, it is a political issue that needs to be dealt with legislatively.