What the latest Supreme Court abortion ruling could mean for WA

Emergency abortions can resume in Idaho, but Northwest advocates say more restrictions could be coming.

The sun rises behind the U.S. Supreme Court

The sun rises behind the U.S. Supreme Court, Oct. 11, 2022, in Washington. (AP Photo/Alex Brandon)

Doctors in Idaho can legally perform emergency abortions again after the Supreme Court released its ruling in Moyle v. United States Thursday, dismissing the case and reinstating a lower court’s order allowing emergency care to continue. But providers and advocates in Washington say more needs to be done to ensure patients in emergency situations receive appropriate care, and that physicians who provide it are protected.

“I am pleased any time the Supreme Court doesn’t codify laws that harm pregnant people, however it’s the bare minimum we should expect,” said Sarah Prager, a Seattle-area abortion provider and professor of obstetrics and gynecology at the University of Washington, after Bloomberg News reported the decision ahead of its official release on Thursday. “I would expect Idaho doctors will still not feel particularly supported in offering emergency abortions without fear of reprisals, just given how the laws are written.”

In a 6-3 opinion, the court dismissed the case as “improvidently granted,” a procedural objection that did not address the validity of specific issues raised in relation to emergency abortion care. News of the ruling was initially reported by Bloomberg on Wednesday, when the news organization obtained a copy of the decision that had been posted to the Supreme Court’s website and removed soon after.

With the case dismissed, a federal judge’s order now blocks the full implementation of Idaho’s abortion ban, which did not include emergency exceptions to preserve pregnant patients’ health, despite national protections under the Emergency Medical Treatment and Active Labor Act, which requires hospitals to provide “stabilizing treatment” in medical emergencies, including urgent situations that are resolved by terminating pregnancy, such as ectopic pregnancies and miscarriages.

Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky called the ruling “a temporary positive outcome … the bare minimum a state should be providing to patients in life-threatening situations.”

“For now, we can take a collective sigh of relief for pregnant people in Idaho,” said the organization’s CEO, Rebecca Gibron, in a statement. “But the truth is that access to life-saving abortion care in an emergency should never have been in doubt. The fact that this right remains in legal limbo is outrageous and shameful. Protecting pregnant people in emergency situations is the bare minimum this court could do and yet they kicked the decision down to a lower court. Two years after the fall of Roe v. Wade, we are seeing just how serious the dangers are to patients’ lives and health without the right to abortion.”

The Washington State Medical Association raised similar concerns. “While a welcome development for patients’ access to care, today’s Supreme Court decision regarding EMTALA doesn’t mean an end to this issue, as there will likely be further challenges to the law,” said the organization’s president, obstetrician/gynecologist Nariman Heshmati, in a statement. “States like Washington that have a long history of protecting access to abortion care must remain vigilant in defending the sanctity of the physician-patient relationship.”

Ahead of the ruling, on June 11, Gov. Jay Inslee had directed the Department of Health to clarify that hospitals in the state are legally required to provide emergency abortion care, a directive that would not have been affected by the ruling had it affirmed Idaho’s ban.

According to Inslee’s press secretary, Mike Faulk, “Every hospital that offers emergency care has a duty to provide the emergency care necessary to a patient’s needs under Washington state law. That includes patients who need emergency abortion services.”

Hospitals are not legally entitled to conscientious objections to emergency abortion care, he said, but can transfer patients to other institutions for other reasons. Such transfers “can’t be used simply as a way of avoiding providing care,” he said. “That would not be allowed.”

Thursday’s ruling does not affirm Idaho’s ban nor emergency access to abortion care, but simply returns the case to lower courts, with emergency abortions allowed in the interim. 

“Some of my colleagues appear to view this convenient rhetorical maneuver as a material change that (also conveniently) reduces the conflict between state and federal law to the point that a ruling from this Court is no longer warranted. ... But it is both legally and factually implausible to say that Idaho’s current litigating position actually mitigates the conflict between that state’s law and EMTALA,” said Justice Ketanji Brown Jackson in an opinion on the procedural objection to the case, which, without a clearer ruling on the case’s merits, may end up back before the court.

In the meantime, challenges to abortion access in emergencies remain ongoing, said Attorney General Bob Ferguson in a statement. “Idaho’s draconian law is back on hold for now, but the challenges to people’s ability to get emergency health care involving an abortion are very real, and very serious,” he said. “Washington continues to protect access to lifesaving and health-preserving care, including abortions. We know that anti-choice extremists will not stop attacking reproductive health care, even when it costs women’s lives. We will fight even harder to protect it.”

Ferguson said Washington’s health care infrastructure would be overtaxed without access to emergency abortions in Idaho, the lack of which has already forced hospitals to airlift patients to hospitals in other states. In April, Dr. Jim Souza, chief physician at Idaho’s St. Luke's Health System, told Boise State Public Radio that after the state’s abortion ban was fully implemented, six patients had to be transferred for emergency care. “If we annualize that, we can anticipate up to 20 patients needing out of state care this year alone,” he said.

Since the court overturned Roe v. Wade in 2023, Washington abortion providers have reported a major increase in patients traveling into the state for care, with many coming from Idaho. After that decision, Planned Parenthood reported a 20% increase in the number of out-of-state patients it served, but even before Roe was overturned, Idahoans routinely traveled into Washington for abortion and other kinds of health care.

According to Tim Pfarr with the Washington State Hospital Association, emergency abortions are generally available to patients in emergency situations in Washington, with some exceptions.

“Many hospitals in the state, especially small rural hospitals, have to transfer patients for all sorts of emergency care because they do not have the expertise to provide the care necessary,” he said. A rural hospital could not do neurosurgery or provide the surgery necessary to safely terminate an ectopic pregnancy. In these cases, the rural hospital's obligation is to do everything possible to stabilize the patient and transfer them to another hospital.

The hospital association did not have specific numbers on how often these transfers are necessary.

But Prager, who has been on the receiving end at UW, said they occur when hospitals don’t have an emergency department with employees “who are capable or comfortable performing an emergency abortion.”

“It can be difficult to differentiate between the two,” she said. “From our perspective at UW, if someone needs to get care, we’re going to accept a transfer.”

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