SCOTUS Allows Emergency Abortions in Idaho — For Now

The Supreme Court reinstated a lower court ruling Thursday that allows physicians to provide emergency abortions in Idaho while litigation continues over whether a federal emergency care law trumps the state’s strict abortion ban.

It’s only a temporary win for reproductive rights advocates, as the 6–3 dismissal in Moyle v. United States doesn’t resolve the question at the heart of the case — whether federal law protects some degree of abortion access for pregnant women facing health risks, even in states like Idaho that have enacted near-total bans on the procedure in the two years since Roe v. Wade was overturned.

By not reaching the merits, Moyle also effectively leaves in place a ruling in a lawsuit brought by Texas in which the Fifth Circuit held that federal law does not require Texas to provide emergency abortions. Indeed, in her partial dissent, Justice Ketanji Brown Jackson warned that kicking this question down the road now all but guarantees that it “will most certainly return to this Court.”

While federal litigation continues, state courts are also considering the scope of state abortion bans — including exceptions for life or health — along with potential conflicts with protections under state constitutions or federal law.

Currently, about 20 states have abortion restrictions or bans on the books. Each of these states permits the procedure when necessary to save the life of a pregnant person. Several states include additional exceptions in cases involving rape, incest, or fatal fetal abnormalities. And while most states with bans allow abortions if there are risks to the pregnant woman’s health, six states — Arkansas, Idaho, Mississippi, Oklahoma, South Dakota, and Texas — have no such exceptions.

As a practical matter, these exceptions are also more limited than they might seem, according to providers and patients alike. Laws often include vague language, such as provisions permitting abortions only to prevent “serious health risks” or damage to a “major bodily function,” which has forced physicians to resort to guesswork when presented with a patient in crisis. Some states with strict bans, including Idaho, threaten providers with criminal penalties as severe as losing their medical licenses or landing behind bars. So providers tend to err on the side of caution when exercising their judgment about when to terminate a dangerous pregnancy or even when to treat a person suffering a miscarriage.

The consequences of providers’ fear of falling afoul of their state’s ban are writ large in the news and in lawsuits around the country. Countless women have shared harrowing stories of being transferred to other states to receive care or being asked to wait in their homes or hospital parking lots until they were sick enough for providers to intervene. Some women have suffered organ loss, infertility, and lifelong health afflictions due to delayed care.

So far, the Biden administration’s attempts to use the federal emergency care law at issue in Moyle — which requires Medicare-funded hospitals to provide stabilizing treatment to those with an “emergency medical condition” — to ensure patients can get otherwise banned emergency abortions have largely fallen flat. As providers have explained, the administration hasn’t aggressively enforced the law nor followed through on threats to pull federal funding from hospitals that don’t comply with it. State governments, by contrast, have been far more vocal about penalizing those who violate their restrictions. Ultimately, the risk calculus leaves many physicians still wary of performing medically necessary abortions.

Against this backdrop, state litigation aimed at clarifying or broadening life and health exceptions to abortion bans has become increasingly common, albeit with mixed success. In some states with conservative-dominated courts, state constitutional guarantees for life and health have been a successful avenue for chipping away at blanket abortion bans. In two noteworthy decisions last year, Oklahoma’s and North Dakota’s supreme courts struck down harsh abortion restrictions after finding that their constitutions provided limited rights to abortion to preserve a woman’s life or (in the case of North Dakota) health.

At the same time, the Texas Supreme Court refused last month to clarify the state’s near-total abortion ban in a case brought by 20 women who said they endured significant physical and emotional harm after their physicians denied them medically necessary abortions over fears of criminal liability. The court determined that the law, which requires physicians to use their “reasonable medical judgment” to decide when abortion is necessary to save a patient’s life, is sufficiently clear. Any health repercussions the women suffered, it asserted, could be chalked up to incorrect legal assessments by physicians rather than legal ambiguity.

A similar challenge to the health and life exception to Indiana’s abortion ban went to trial last month. The law permits abortions if necessary to prevent death or a “serious health risk,” which physicians argue is defined using “vague and incredibly unclear” language that doesn’t meet medical standards. One OB-GYN physician testified at trial that she had refrained from providing emergency abortions to patients with health risks because she was uncertain if they were serious enough to be covered by the law’s exceptions. It remains to be seen whether the Indiana Supreme Court, which upheld the ban last year but still found that its state constitution provides for abortion care when a pregnant woman’s life or health is at stake, will be more amenable than its Texas counterpart to such bids to clarify the protections under state law. Similar state litigation in Idaho is also ongoing.

With the U.S. Supreme Court declining to rule — at least for now — on whether federal law addresses emergency abortions, state law and constitutions will continue to play a significant role in determining whether and under what circumstances women can obtain abortions to preserve their life and health. As suggested by the rising tide of litigation aimed at clarifying or expanding the scope of exceptions to abortion restrictions, these questions are likely to play out differently depending on both the state and the specifics of the law at issue, leaving millions of women and their doctors in dangerously uncertain territory.

Gabriella Sanchez is a staff writer and editor at the Brennan Center for Justice.