Colleen O’Brien: Supreme Court grapples with Idaho abortion ban

May 4, 2024, 3:42 PM

The U.S Supreme Court is photographed on Friday, Jan. 5, 2024, in Washington. The Supreme Court is ...

The U.S Supreme Court is photographed on Friday, Jan. 5, 2024, in Washington. The Supreme Court is allowing Idaho to enforce its strict abortion ban, even in medical emergencies, while a legal fight continues. The justices on Jan. 5, said they would hear arguments in the case in April and put on hold a lower court ruling that had blocked the Idaho law in hospital emergencies, based on a lawsuit filed by the Biden administration. (Photo: Mariam, AP)

(Photo: Mariam, AP)

Teaches and writes in the area of Constitutional Law and specializes in unenumerated constitutional rights. These are rights not written into the constitution but nevertheless, the courts have, over the years, recognized them as being intrinsic privacy and liberty rights. Rights such as marrying who you choose, access to access contraceptive care, and the right to access abortion care. However, in 2022, the right to abortion care was struck down and that’s why we now find ourselves covering Supreme Court cases involving state laws around abortion and if those laws go too far.

Idaho’s new law only allows for an abortion during emergency care to save the mother’s life. The U.S. Justice Department sued Idaho on grounds that the law violates the federal Emergency Treatment and Labor Act (EMTALA). The lawsuit has made its way to the U.S. Supreme Court. We invited Erin Carr, Assistant Professor of Law at Seattle University, on Seattle’s Morning News to help us wade through the Supreme Court arguments and questions in this case.

“Under EMTALA, hospitals that receive federal funding must provide “stabilizing treatment” for “emergency medical conditions” — even if it ends the pregnancy,” Carr said.

The Department of Justice is asserting that Idaho’s near complete abortion ban conflicts with EMTALA because under the abortion ban in the state of Idaho, there are criminal penalties for doctors who provide emergency abortion care where a pregnant woman’s health may be at risk, but her life isn’t necessarily at risk,” she continued.

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That seemed to be what certain justices zeroed in on during questioning. Justices Sonia Sotomayor and Amy Coney-Barrett seemed to be seeking clarity from Idaho’s attorney Joshua Turner about how a doctor might determine if a woman is “near death’s door” or “at death’s door”. Carr said without clarity on the minimum standard of care for a pregnant woman, Idaho’s law could create near-fatal or lifelong harm to pregnant mothers.

“What (Idaho) is arguing is that the Idaho Defense of Life Act is not directly conflict with EMTALA. And that’s because they are not providing abortion care to anyone. And instead of providing that emergency care, the state of Idaho is essentially transporting those patients out of state in order to get that life-saving stabilizing care,” Carr explained.

One Justice brought up that there have already been women transported out of Idaho in order to receive care, so this is not a hypothetical situation. Idaho’s ban is already having real-world implications for women and, in fact, Carr said one in five doctors in Idaho has left to work in another state.

“It really places medical providers in Idaho in an impossible situation. And that’s because the Idaho Defense of Life Act provides very, very narrow circumstances in which abortion will be permissible, and that is where the pregnant person’s life is at risk, not necessarily their health, but their life. And so many providers in Idaho do not feel that they are empowered to provide emergency abortion care unless it is pretty much a given that this pregnant person is on death’s door,” Carr said.

The places women are being transported to from Idaho include Washington State, and we asked Carr if lawsuits are on the way as other states shoulder the financial and ethical burdens born out of these restrictive laws.

You can listen to the entire interview with Professor Erin Carr below.

Listen to Seattle’s Morning News with Dave Ross and Colleen O’Brien weekday mornings from 5-9 a.m. on KIRO Newsradio, 97.3 FM. Subscribe to the podcast here.


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Colleen O’Brien: Supreme Court grapples with Idaho abortion ban