It might have been hard to believe just two years ago that a doctor in the United States would have to weigh the possibility of jail time before performing an emergency abortion.
However, since the 1973 Roe v. Wade decision, which had legalized abortion nationwide, was overturned by the U.S. Supreme Court in June 2022, several states have passed Republican-backed near-total bans on abortion, which come with the threat of criminal penalties and loss of medical license. As a result, these predicaments have become commonplace.
The court on Wednesday is set to hear arguments in a case pitting Idaho’s strict abortion ban against a federal law that ensures that patients can receive emergency care. It forces the court, which has a 6-3 conservative majority, to revisit the fraught legal landscape that it created with its 2022 Dobbs v. Jackson Women’s Health Organization ruling that scuttled Roe.
Idaho is appealing a judge’s decision, made in a 2022 lawsuit by President Joe Biden’s administration, that found that the 1986 federal law at issue, the Emergency Medical Treatment and Labor Act (EMTALA), takes precedence over the state’s law.
EMTALA requires hospitals that receive funding under the federal Medicare program to “stabilize” patients with emergency medical conditions. At issue now is whether Idaho’s ban must yield to EMTALA when a doctor determines an abortion is the necessary “stabilizing care.”
“The Supreme Court is having to reckon with, yet again, litigating abortion rights in an era that the majority opinion in Dobbs suggested would return it to the states and out of the courts,” said Rachel Rebouché, dean of the law school at Temple University in Philadelphia.
