Update on EMTALA protections for medically necessary abortions in Idaho

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There have been several recent developments in Idaho with regard to EMTALA protections for medically necessary abortions.

First, on September 28th the Ninth Circuit Court of Appeals removed the injunction that allowed physicians in Idaho to perform abortion as part of medically necessary stabilizing care under the Emergency Medicine and Active Labor Act (EMTALA).

As previously reported, after Idaho prohibited abortion in August 2022, the federal government sued Idaho under the premise that EMTALA preempted state law in cases of emergency.  The federal district court issued a preliminary injunction in that case; the injunction essentially created a requirement for physicians to perform abortion as part of emergency medical care, if necessary to preserve the health of the mother.  The injunction also created an exception to Idaho’s law, which prohibits abortion unless it is necessary as a life-saving measure or in the setting of documented rape or incest.

In April, Idaho passed a law that specified medical conditions in which abortion is permitted, including ectopic pregnancy, molar pregnancy, and removal of a deceased fetus.

For more information and a legal analysis of the Ninth Circuit decision and the underlying case, please see here.

It is important to note that EMTALA does not apply once a patient is admitted to the hospital; therefore, physicians in Idaho have been unable to perform abortion as a medically necessary intervention for hospitalized patients since August 2022.  However, the recent removal of the EMTALA exception significantly impacted the ability to care for pregnant women who present to hospitals with emergent medical conditions, such as uterine bleeding or infection, that threaten their health and would otherwise necessitate termination of the pregnancy.  In these situations, physicians must either allow these patients to deteriorate to the point where their life is clearly endangered, or prospectively transfer the patients to neighboring states where abortion is legal.

In light of these concerns about an inability to deliver necessary care, on October 10th the Ninth Circuit agreed to reconsider the appeal and, importantly, the injunction allowing EMTALA exceptions was reinstated.  The court will proceed with an “en blanc” consideration of the case, and a future hearing will be scheduled.  In the meantime, physicians can treat patients in accordance with EMTALA requirements, including the performance of medically necessary abortions.

MIEC is continuing to follow these developments, and we will provide more updates as appropriate.