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How the SCOTUS ruling on Idaho’s emergency abortion ban will affect patient transfers to Utah

Posted at 5:05 PM, Jun 27, 2024

SALT LAKE CITY — The United States Supreme Court sidestepped a decision Thursday on whether federal law requires states to provide pregnancy terminations in medical emergencies even in cases where the procedure would otherwise be illegal.

Instead, the court’s opinion – which stems from Idaho’s near-total abortion ban – kicked the legal questions surfaced in the case back to the lower courts and reinstated a previous ruling that will allow doctors in the state to perform emergency abortions in the meantime.

That means women in Idaho are unlikely – at least for now – to be airlifted to nearby states like Utah for the procedure.

“After today, there will be a few months — maybe a few years — during which doctors may no longer need to airlift pregnant patients out of Idaho,” Justice Ketanji Brown Jackson wrote of the decision’s impact, in an opinion that dissented in part and concurred in part with the broader court’s ruling.

But the dismissal of the case leaves open key legal questions and sets up the potential that the issue of emergency room abortion care will come to the court again in the future.

In her brief, Jackson was critical of the court’s indecision, arguing that the ruling represented “not a victory” for Idaho patients but a “delay” – and that doctors still face the difficult decision of “whether to provide emergency medical care in the midst of highly charged legal circumstances.”

Conservatives Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett joined Jackson and her liberal colleagues, Justices Elena Kagan and Sonia Sotomayor, in the 6-3 opinion, which was erroneously posted online Wednesday. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented.

In his opinion, Alito also argued that the legal questions in the case – which come as abortion has become a political flashpoint in the U.S. presidential election – should have been decided, saying it was as “ripe for decision as it will ever be."

“Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” he wrote.

Alito indicated that he would have ruled against the Biden administration’s interpretation that the federal Emergency Medical Treatment & Labor Act (EMTALA), which requires hospital emergency rooms that receive Medicare funding to provide treatment to people experiencing medical emergencies, supersedes Idaho’s abortion ban.

Idaho law allows doctors to terminate a pregnancy for any woman with emergency health complications who is clearly on the brink of death. But it’s quiet on the question of what to do when pregnancy complications put someone’s health at risk but don't imminently risk her life.

Under threat of jail time and loss of their medical licenses, Idaho doctors said prior to Thursday’s ruling that they sometimes had no choice under such circumstances but to send a woman across state lines by helicopter or advise her to otherwise get to another state for treatment.

“Those transfers measure the difference between the life-threatening conditions Idaho will allow hospitals to treat and the health-threatening conditions it will not,” Kagan wrote in a concurring opinion Thursday.

Some women were transferred to reliably blue states like Washington and Oregon. But Utah's capital was “one of the places we’ll tend to call first,” Stacy Seyb, a physician specializing in maternal-fetal medicine at St. Luke’s Hospital in Boise, told FOX 13 earlier this year.

While abortion remains legal up to 18 weeks in Utah, a near-total ban is currently on hold pending a ruling from the Utah Supreme Court.

Rep. Karianne Lisonbee, R-Clearfield, sponsored the abortion ban in the House and noted in a statement that “today’s Supreme Court ruling has no direct implications on Utah’s strong pro-life laws, including our trigger law.” “Utah will continue to stand up for policies that protect the unborn,” she added.

Thursday’s ruling does mean doctors in Idaho likely won’t have to airlift patients to Utah and other states, which Planned Parenthood Association of Utah Chief Corporate Affairs Office Shireen Ghorbani called a “small victory.”

“But what should have happened honestly is the Supreme Court should have said you have a right to emergency medical treatment, you’ve had that right for 40 years and you should have the right to an abortion if that is the appropriate medical care for the complication for the experience that you’re having,” she argued.

Regardless of the court’s decision, Ghorbani said she expects some Idaho women will still have to come to Utah for abortion care.

“Twenty two percent of their OBGYNs have left the state, they are running very low on specialists in maternal-fetal medicine,” Ghorbani noted. “That reality has now been created for people who live in Idaho. So there may still be people from Idaho who are seeking emergency medical care in Utah and this is what happens when we ring this bell.”

Recently released data from the Guttmacher Institute, a research group that supports abortion rights, showed that 7% of all abortions performed in the state last year were for non-residents coming to Utah from Idaho. The data showed some Utah women also traveled out of state in 2023, to both Nevada and Colorado.

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