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

On By Vaseline

Teaches and writes in the field of constitutional law and specializes in unenumerated constitutional rights. These are rights that are not enshrined in the Constitution, yet the courts have recognized them over the years as intrinsic privacy and freedom rights. Rights such as marrying who you want, access to contraceptive care and the right to access abortion care. However, in 2022, the right to abortion care was struck down, so we are now hearing Supreme Court cases about state laws surrounding abortion and when those laws go too far.

Idaho’s new law only allows abortion during emergency care to save the mother’s life. The U.S. Department of Justice has sued Idaho, saying 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, to Seattle’s Morning News to help us walk through the Supreme Court’s arguments and questions in this case.

“Under EMTALA, hospitals receiving federal funding must provide “stabilizing treatment” for “urgent medical conditions” – even if it ends the pregnancy,” Carr said.

The Department of Justice alleges that Idaho’s near-total abortion ban violates EMTALA because Idaho’s abortion ban imposes criminal penalties on physicians who provide emergency abortion care where a pregnant woman’s health may be at risk, but her life is not necessarily in danger,” she continued.

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That seemed to be what certain judges focused on during questioning. Judges Sonia Sotomayor and Amy Coney-Barrett appeared to seek clarity from Idaho attorney Joshua Turner on how a doctor could determine whether a woman is “on the brink of death” or “on the brink of death.” Carr said that without clarity on the minimum standard of care for a pregnant woman, Idaho’s law could cause near-fatal or lifelong harm to pregnant mothers.

“What (Idaho) is claiming is that the Idaho Defense of Life Act does not directly conflict with EMTALA. And that’s because they don’t provide abortion care to anyone. And instead of providing this emergency care, the state of Idaho is actually transporting these patients out of state to receive that life-saving, stabilizing care,” Carr explained.

One judge brought up that women have already been transported from Idaho to receive care, so this is not a hypothetical situation. Idaho’s ban is already having real consequences for women, and in fact, Carr says one in five doctors in Idaho have left to work in another state.

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

The places women are being transported from Idaho include Washington state, and we asked Carr if any lawsuits are on the horizon as other states bear the financial and ethical burdens resulting from these restrictive laws.

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

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