by Madeline Armstrong
Attorney General Kris Mayes joined 24 other attorneys general in filing an amicus brief in support of legalizing “emergency abortion care” for Idahoans in the case U.S. v. Idaho. This brief is the most recent event in the two-year long litigation process.
The initial lawsuit stems from the reversal of Roe v. Wade resulting in a near-total abortion ban in Idaho allowing exceptions only for rape and incest, accompanied by a signed report, or the immediate death of the mother. The key difference between Idaho’s ban on abortion and federal statute occurs when a woman is facing a serious threat to her health but not an immediate risk of losing her life.
In September 2023, an Idaho District court ruled that Idaho’s abortion ban violates the federal Emergency Medical Treatment and Labor Act (EMTALA) which requires hospitals that operate an emergency department and participate in Medicare to provide emergency care to all patients in order to stabilize them or use life-saving measures.
“The district court correctly concluded that emergency care required by EMTALA includes abortion when a pregnant individual experiencing an emergency medical condition needs an abortion to prevent serious harm to their health, or to prevent a serious impairment to a bodily function or serious dysfunction of an organ or body part,” reads the amicus brief. “Idaho law, however, criminalizes abortion in nearly all situations, including when pregnant patients experiencing emergency medical conditions require abortion care to prevent serious health harms.”
The attorneys general decided to file this amicus brief on Wednesday in response to the Supreme Court’s June decision to implement a stay on the district court’s ruling, sending the case back to the Ninth Circuit for further review.
“Idaho’s abortion ban is not only dangerous, it’s unlawful under federal standards,” Mayes said in a Wednesday press release. “Emergency abortion care saves lives, and we cannot allow this ban to put lives at risk or overwhelm health care systems in Idaho and its neighboring states. I will continue to stand alongside my fellow attorneys general to fight to protect access to essential, life-saving care.”
The brief argues that not only does Idaho’s abortion ban threaten women’s health, it increases burdens on other states, is causing medical providers to leave the state and sets a dangerous precedent that states can override the EMTALA.
Certain life and health-threatening conditions noted in the brief that may require an abortion include a placental abruption, premature rupture of membranes and periviable severe preeclampsia.
“These conditions all trigger EMTALA’s obligation to provide stabilizing care since in the absence of immediate treatment, all of them would reasonably be expected to result in serious jeopardy to the pregnant individual’s health, serious impairment to bodily functions, or serious dysfunction of a bodily organ,” reads the brief. “Courts throughout the country likewise have repeatedly concluded that pregnancy-related emergency conditions, including those that require treatment by abortion, fall within the scope of EMTALA.”
The brief cites numerous examples of women suffering due to Idaho’s law restricting physicians from providing emergency abortions to prevent long term health conditions.
“Given the serious penalties for violating Idaho’s law, and the risk that even good-faith medical judgments will be second guessed, ambiguity regarding the legality of emergency abortion care creates a ‘culture of fear’—deterring providers from performing emergency abortions even when EMTALA requires them,” reads the brief. “Denying stabilizing abortion care when a pregnant patient faces a serious health threat can cause severe and irreparable injury, including hysterectomy and fertility loss, kidney failure, brain injury, and limb amputation, forcing the patient to live ‘with significant disabilities and chronic medical conditions.’”
The brief gives an example of a woman from Georgia, Amber Thurman, mother to a six-year-old son, who died after a hospital waited 20 hours to provide an emergency abortion. The delay was caused by physicians being “unclear” about what the law would allow.
“Patients are also harmed by having to travel for emergency abortions,” reads the brief. “When the preliminary injunction was stayed, numerous pregnant patients were airlifted out of Idaho for emergency pregnancy complication care. Those patients must endure the risks of delayed care—exacerbated complications, more extensive treatment, a higher likelihood of emergency follow-up care, and costs to their emotional and mental health—and absorb related out-of-pocket expenses.”
Additionally, just a few months after the abortion ban went into effect, one in four obstetricians either left the state or retired, including over half of Idaho’s maternal-fetal-medicine specialists.
Other states involved in filing the brief include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin and the District of Columbia.
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Madeline Armstrong is a reporter for The Center Square.
Photo “Kris Mayes” by Kris Mayes.
