Docs Unmoved by Supreme Court’s Emergency Abortion Decision

Legal and clinical experts around the country agreed that a recent Supreme Court ruling did not not materially change the status of abortions in Idaho or anywhere else in the nation.

On Thursday, the high court ruled 6-3 to allow emergency abortions to continue in Idaho, while sending a case, which pits a federal law against the state’s near-total abortion ban, down to the lower courts to decide. The decision was combined for the two cases, Moyle v. United States and Idaho v. United States.

“It’s essentially like the court didn’t decide anything at all,” commented Beverly Gray, MD, an ob/gyn at Duke University in Durham, North Carolina.

People on both sides of the abortion issue told MedPage Today that the Supreme Court sidestepped the critical question of whether a federal law that requires emergency departments receiving federal funds to provide stabilizing care to pregnant women — including abortions when the woman’s life or health is at risk — preempts a state law banning nearly all abortions with exception for the life (but not the health) of the mother.

“What we had really hoped for is the Supreme Court to come down very firmly [to say] that we, that doctors, should be able to provide care for patients, including in emergency situations where abortion care can often be needed to stabilize patients,” said Nisha Verma, MD, MPH, an ob/gyn and complex family planning specialist in Atlanta, during a press call hosted by the American College of Obstetricians and Gynecologists (ACOG).

“Nothing has changed because of what happened in Idaho,” commented Mary Hodges, DNP, RN, vice president of the National Association of Pro-Life Nurses (NAPN). “The status quo is still the same,” she said, noting that both sides got “a little bit of a win.”

Thursday’s Supreme Court ruling centered on the federal Emergency Medical Treatment and Active Labor Act (EMTALA), a law that applies to all emergency departments if the hospital participates in Medicare. However, Idaho’s Defense of Life Act still outlaws all abortions except in cases of rape or incest (if reported to the police), or to save the life of the pregnant person.

Thus, despite the temporary “reprieve” of the Supreme Court decision, it “doesn’t provide a final decision that the Idaho law won’t go back into effect,” explained Molly Meegan, JD, chief legal officer and general counsel for the ACOG, during the press call.

The American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), in a press statement, argued that “Idaho’s life-saving law, like every other pro-life protection across the country, allows for maternal-fetal separation when a mother faces emergency complications related to pregnancy. This protection puts the law in line with EMTALA, not in conflict with it.”

“The daily efforts of thousands of physicians across the country to treat serious complications while giving both mothers and their unborn children quality care are consistent with EMTALA’s recognition of the importance of emergency treatment for both maternal and fetal patients,” added Christina Francis, CEO of AAPLOG.

However, in Idaho, approximately 50 ob/gyns have either retired or “been forced to leave” because of its abortion ban, said ACOG President Stella Dantas, MD.

Keeping an eye on the Idaho ruling from the opposite side of the country, Nikki Zite, MD, MPH, an ob/gyn at the University of Tennessee Medical Center in Knoxville, works in a state where a trigger ban outlawed nearly all abortions in 2022.

She hopes Thursday’s decision will allow physicians to interpret the law the way her institution does, which is to provide abortion options when there is “a health or life-threatening condition,” she said.

Tennessee’s strict abortion ban has been amended to include exceptions for ectopic pregnancy, miscarriage management, and molar pregnancy. “We went from … a ‘guilty-until-proven-innocent’ clause, to reasonable medical judgment,” Zite said, but clinicians’ actions and what is “reasonable” can still be challenged. Tennessee is still a “felony state,” she said.

As such, she suggested that not all institutions are comfortable providing emergency abortion care, which will mean more delays and greater risks for patients.

Gray suggested that smaller community hospitals, “where they may not have the same community or the same legal support,” are particularly vulnerable in abortion ban states.

“In North Carolina, we have a very complicated abortion ban in place that limits care after 12 weeks, with several narrow exceptions, including maternal health exemptions, life-limiting fetal anomalies, or rape or incest beyond 12 weeks,” she said.

“I get asked a lot of questions about interpreting the law, but you know what? I’m not a lawyer. And I wish lawyers and judges wouldn’t play doctor,” Gray stressed. “I want to just take care of patients and not have to worry that someone might come behind me and say ‘Was that patient really, really at risk?'”

Verma similarly said that in Georgia, physicians are “constantly in a state of confusion” and are frustrated by having to navigate Georgia’s abortion law, which bans most abortions after 6 weeks with exceptions for medical emergencies and medically futile pregnancies.

Dantas compared the situation physicians are in to pilots who have their hands tied mid-air. “How would you feel being on that plane? That person couldn’t do X, Y, or Z when they were trained [to act] in a split second. If something flew into the engine, you wouldn’t feel safe.”

The same is happening for pregnant people, she said. “Depending on what zip code they live in, depending on what state they live in, they cannot get access to the best possible medical care in any situation.”