Idaho Argues Pregnant Women Facing Amputations from Septic Shock Can’t Get Emergency Abortions

There was another hearing in the EMTALA case from the summer, but hanging over the proceedings was the fact that Donald Trump is expected to drop the lawsuit against Idaho and let this suffering spread.

By Susan Rinkunas | December 11, 2024 | 1:01pm

Abortion Politics

Idaho Argues Pregnant Women Facing Amputations from Septic Shock Can’t Get Emergency Abortions

Alliance Defending Freedom lawyer, John Bursch, who represented Idaho. Photo: YouTube/9th Circuit

The question of whether states can ban abortions when women’s health is in danger is unfortunately not a settled one. Recall that, in June, the Supreme Court said it shouldn’t have taken a case about Idaho’s abortion ban potentially conflicting with a federal law. Instead, the justices punted the case back to an appeals court, which heard arguments on Tuesday. The hearing was a bleak spectacle underscoring how the incoming Trump administration will torture women and pregnant people, including letting them have limbs amputated before they can have an abortion.

The case, Moyle v. United States, began in 2022 when the Biden administration sued Idaho arguing that its abortion ban, which lacks a health exception, violated the Emergency Medical Treatment and Active Labor Act. EMTALA is a federal law that requires emergency rooms to provide stabilizing care to patients, including abortion. After the Dobbs decision that overturned Roe v. Wade, the Biden administration sent out guidance, reminding ERs that they have to offer abortion if a pregnant patient’s life or health is threatened. Idaho disagreed, saying it has a right to regulate the practice of medicine and would only offer abortions if necessary to prevent death.

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The Supreme Court heard arguments in April, then said in June that Idaho doctors can provide emergency abortions without fear of prosecution while the case continued in lower courts. Justice Ketanji Brown Jackson wrote in concurrence that the ruling was no cause for celebration. “Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” she said. “But storm clouds loom ahead. Three Justices suggest, at least in this context, that States have free rein to nullify federal law.”

The court’s move ensured the case would be decided after the election, and that stories of pregnant women being airlifted to other states would stay out of the news. Donald Trump’s administration is expected to rescind Biden’s EMTALA guidance and drop the lawsuit against Idaho.

The patients caught in the gap between what federal law requires and what Idaho’s abortion ban permits are typically women experiencing miscarriages, or whose water breaks far too early for a fetus to ever be viable, like at 18 weeks. These patients could develop life-threatening sepsis if their doctors don’t clear their uterus, but that’s illegal in Idaho if there’s still a fetal heartbeat. In 2023, a three-judge panel of Trump appointees ruled that Idaho’s ban didn’t violate EMTALA, which the U.S. appealed all the way to the Supreme Court. On Tuesday afternoon, lawyers made their case at the Ninth Circuit Court of Appeals before a panel of 11 judges, including four Trump appointees.

The first lawyer representing Idaho on Tuesday, John Bursch of the Christian nationalist law firm Alliance Defending Freedom, seemed unconcerned with the prospect of patients going into septic shock. Judge Milan Smith asked him if a woman needed an abortion not to save her life but to prevent losing a limb — like, for instance, one of her legs — could a doctor perform the abortion? Bursch said no.

Taylor Meehan, an attorney for the Idaho legislature, said that in the case of a woman’s water breaking too early — known as preterm premature rupture of membranes (PPROM) — it would be medical malpractice for a doctor not to treat that as a life-threatening condition, which means abortion would be permitted. Judge Smith reminded her that prosecutors enforce the law, and if they don’t think a physician offering an abortion was a good-faith judgement, doctors face up to two years in prison and the loss of their medical license. Meehan cited an opinion from a separate lawsuit in which “the Idaho Supreme Court is going out of its way to say, ‘we don’t want the prosecutor second-guessing [doctors].'” She then made an offensive hypothetical: “If an abortion is provided for a paper cut, right, we would expect a prosecutor to question that judgment.”

Catherine Carroll, a lawyer for the Department of Justice, thankfully brought the consequences of Idaho’s ban back to Earth when describing women who could lose their uterus or their Fallopian tubes, or damage their kidneys because of the distance between state and federal law. “This is a gap that exists in the real world, in real cases where real people are coming into the emergency room facing not only the tragic loss of their pregnancy, but also the potential to permanently lose their fertility and any possibility of ever becoming pregnant again in the future, the possibility of kidney damage leading to lifelong dialysis, the possibility of limb amputations.” This is not a hypothetical concern: A Texas woman had her hands and feet amputated after she developed septic shock following a C-section.

Caroll also noted that Idaho could make the same argument about EMTALA even if its ban didn’t have an exception for the life of the pregnant person. It would be extreme for states to do this, but Carroll was pointing out that Idaho’s legal theory has no limiting principle.

U.S. makes a good point: According to Idaho's arguments, a state could enact a total abortion ban with zero exceptions. According to Idaho, EMTALA would have absolutely nothing to say about that even though Congress passed a whole law to require hospitals to provide life-saving care

— Garnet Henderson (@garnethenderson.com) 2024-12-10T22:28:27.028Z

Judge Consuelo Callahan, a George W. Bush appointee, asked Bursch if the hearing was “an exercise in futility” given that a new administration is about to take office and asked why the panel shouldn’t send the case back to a lower court. Trump reversing course on EMTALA may be a fait accompli, but this case couldn’t be more important for pregnant women in Idaho who show up in ERs between now and January 20.

Unfortunately, Trump-appointed Judge Lawrence VanDyke was not-so-subtly auditioning for a Supreme Court nomination during the hearing. He asked a lawyer for St. Luke’s Health System if all the reported airlifts were really necessary because the women weren’t facing imminent death. “Your argument is, if the mother wants to kill the baby, even though it’s not necessary to prevent [their] death, then they have to be airlifted?” VanDyke asked. Lindsay Harrison responded that, in these situations, it’s very unlikely that the fetus will survive because a woman’s water broke weeks before fetal viability. So, yes, doctors would reasonably counsel patients to terminate because they won’t leave the hospital with a baby and could die.

VanDyke’s comment is “pick me” energy for assholes who want to replace Samuel Alito or Clarence Thomas, and we’re going to see a lot more of it in the coming months as women and pregnant people suffer.