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Ferguson, other Democratic AGs ask SCOTUS to block red state bans on emergency abortions

Drawing of female reproductive system with judge's gavel and stethoscope. Conceptual about abortion, legislation, feminism, woman
Laura Rosina/Getty Images/iStockphoto
Drawing of female reproductive system with judge's gavel and stethoscope. Conceptual about abortion, legislation, feminism, woman

Washington Attorney General Bob Ferguson and nearly two dozen other Democratic-led states urged the U.S. Supreme Court to preserve the ability of emergency room doctors to provide abortions, arguing that failing to do so would have devastating effects for their health care systems and women across the country.

At issue is whether a near-total Idaho abortion ban conflicts with the Emergency Medical Treatment and Labor Act, a federal law that governs how hospitals must provide emergency care for patients facing dangerous medical conditions.

While the Idaho law forbids all abortions with narrow exceptions for rape, incest and imminent death, EMTALA requires doctors to provide “stabilizing care” for patients with significant health risks, not just fatal prognoses. And for pregnant patients, that care has long been understood as including abortions when necessary to stave off critical conditions, like preeclampsia and hemorrhage.

In August 2022, the Biden administration sued Idaho over its ban and quickly won a ruling from a federal district that froze the law. In January, the U.S. Supreme Court paused the lower court’s decision and agreed to hear an appeal in April.

Ferguson and 23 other Democratic attorneys general – including Oregon, Arizona and California – called on the high court to reaffirm the injunction against the Idaho law, saying that siding with Idaho is the wrong move.

In an amicus brief filed on Friday, the Democratic attorneys general warned that weakening the protections in EMTALA would encourage other anti-abortion states to further restrict their care, leading to strained health care systems in states that choose to preserve access — on top of an already unprecedented surge in out-of-state demand.

“Allowing States like Idaho to eviscerate EMTALA’s nationwide guarantee of stabilizing emergency care and protection against patient dumping will drive many pregnant patients to amici States for emergency abortion care to preserve their health,” reads the brief. “That influx may result in more crowded waiting rooms, increased delays for urgent healthcare services, and overall strains on many amici States’ healthcare systems.”

And forcing patients to travel out-of-state for emergency care will only result in increased burdens for the hospitals that do end up providing treatment, wrote the attorneys general. One Tennessee woman was denied an emergency abortion in her home state and transported six hours away to North Carolina by ambulance to receive the procedure, where she arrived with dangerously high blood pressure and signs of kidney failure. The woman’s doctor in Tennessee hesitated to provide an abortion because of a state law that makes it a felony to do so.

That hesitancy from medical professionals to act under threats of criminalization was cited by the attorneys general as a key reason to preserve the protections of EMTALA. The act directs hospitals that participate in Medicare and have emergency rooms to offer stabilizing care to patients that arrive with critical health conditions before discharging or transferring them.

Delayed or denied care would be in direct violation of that mandate. But numerous abortion bans passed across the country have had that exact effect.

The amicus brief pointed to a study in Texas, which has a 6-week abortion ban, that found that the rate of maternal morbidity for women in the state with pregnancy complications was nearly double that of other women in states where doctors were allowed to terminate when dangerous health risks arose. Women in the Texas study received observation only care until they could be deemed at risk of death, their fetus had no cardiac activity or they spontaneously went into labor, and because of that delay they suffered hysterectomies, hemorrhages, and admissions into the intensive care unit.

“Prohibiting providers from offering medically necessary, evidence-based emergency abortion care to their pregnant patients poses a direct threat to those patients’ lives and well-being — precisely the sort of harms that Congress designed and enacted EMTALA to avoid,” wrote the attorneys general.

In Washington, abortions have been legalsince 1970. Laws enacted in recent years aimed to make the state a haven for those seeking abortions since the Supreme Court’s Dobbs decision in 2022 overturning federal protections.

Under Washington law, a pregnancy may be terminated up to the point of fetal viability – as determined by a provider – or to protect the life or health of the pregnant individual.

No waiting periods are required and people of any age have the right to independently consent for their own abortion care. You do not have to be a state resident nor a citizen of the United States to get abortion services in the state. And, Washington requires state-regulated health insurance plans that cover maternity services to also cover abortion services.

“When politicians force doctors to practice in this kind of culture of fear, serious complications and unnecessary health risks for pregnant women skyrocket,” Ferguson said Monday. “The decision about whether an abortion is needed in an emergency should be medical, not political. Idaho’s near-total ban on abortion is wrong – and unlawful.

Oregon has essentially no barriers to having an abortion, and state law mandates that they be provided without out-of-pocket costs for most people. Most are performed in clinics.

In Arizona, state law bans abortions after 15 weeks of gestation, unless the mother is facing imminent threat of death. And while the bulk of surgical abortions occur in one of the state’s nine abortion clinics, some are performed in hospitals. Out of 11,407 abortions provided in 2022, the latest year for which there is data, 24 were performed as a result of a hospital inpatient stay.

Arizona Attorney General Kris Mayes issued a statement Friday that emergency abortion care is an important health care protection for women, and that it should be left up to doctors to decide what’s best for their patients.

“Access to emergency abortion care is critical for the health and safety of patients facing medical emergencies,” she wrote. “Emergency medical decisions should be guided by the needs of the patient, not restrictive anti-abortion laws.”

Arizona Mirror is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: Follow Arizona Mirror on Facebook and Twitter.

Washington State Standard is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Washington State Standard maintains editorial independence. Contact Editor Bill Lucia for questions: Follow Washington State Standard on Facebook and Twitter.