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CONSTITUTIONAL CONVERSATIONS
PHOTO BY IAN HUTCHINSON
The Shifting Legal Landscape of Reproductive Freedom in Idaho and Beyond
No area of American law reflects changing political calculations, head-spinning reactions, and sweeping confusion in quite the way abortion law does at this point in the nation’s history. Idaho is just one judicial microcosm in a disjointed puzzle of states for and against.
At this juncture, and perhaps only temporarily, pregnant women in Idaho may obtain emergency abortions under a federal statute, if necessary, to provide stabilizing medical treatment. Otherwise, Idaho’s legal landscape is governed by the state’s near-total abortion ban. This reflects the U.S. Supreme Court’s ruling in 2022, in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the 50-year-old precedent that had guaranteed a fundamental constitutional right to abortion, and declared that access to reproductive health care is left to the discretion of state governments.
The windblown reality of abortion law in America today is a patchwork quilt that divides the nation between states that permit access to abortion clinics and those that deny it, those that have enshrined protections and those that have imposed restrictions. The confusion surrounding the changing status of reproductive rights across the country resembles an earlier, fraught historical period—antebellum America—in which geographical lines were similarly in disagreement in distinguishing free from slave states. In a legal system dedicated to stability, predictability, and continuity—three vital components of the rule of law—such unpredictability reflects and feeds division within citizenry and ignites legal challenges. When and how do these battles end? Idaho is a case in point that has yet to provide an answer.
...Idaho enforced its ban on abortions, even when terminating a pregnancy was necessary to prevent grave harm to a woman.
The state’s abortion law—the Defense of Life Act—prohibits abortions unless necessary to prevent a pregnant woman’s death. The law makes no exceptions for abortions necessary to prevent grave harms to the woman’s health, such as organ failure, permanent disability, or loss of her fertility.
In the wake of the Dobbs ruling, and before the law could take effect, the federal government sued Idaho under the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires Medicare-funded hospitals to provide essential care to patients experiencing medical emergencies. The government argued that EMTALA, under the Supremacy Clause of the Constitution (Article VI), would preempt the state law in those cases where the law prohibits hospitals from providing abortions necessary to prevent serious harm to the patient’s health.
On August 24, 2022, the U.S. District Court of Idaho, believing the federal government was likely to prevail, issued a preliminary injunction—effectively a legal pause on the criminal and civil penalties that attach to those providing abortions—that prevented provisions of the Idaho statute from taking effect. In the year that the injunction was in place, women in Idaho could obtain abortions in medical emergencies. Meanwhile, Idaho sought to lift the injunction. When the en banc Court of Appeals for the Ninth Circuit declined to grant a stay, Idaho filed an emergency appeal with the Supreme Court.
On January 5, 2024, the court, in Idaho v. United States, stayed the injunction and granted Idaho’s petition for certiorari. With the stay in effect, Idaho enforced its ban on abortions, even when terminating a pregnancy was necessary to prevent grave harm to a woman. Six patients in the care of St. Luke’s Health System suffered severe pregnancy complications and were airlifted out of state. The Supreme Court’s intervention thus dramatically changed the lives of women who might have received health care in their home state.
On June 27, 2024, the Supreme Court, in a rare admission of error, issued a 6-3 decision that dismissed the case and sent it back to the lower courts to determine whether the state law violates EMTALA. The court acknowledged that the writ of certiorari, issued just six months before, had been based on “miscalculations” and thus “improvidently” granted. In a concurring opinion, Justice Amy Coney Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, tried with little success to explain that the court’s miscalculation was based on the premise that “the shape of these cases has substantially shifted.” Whether the record substantiates that assertion is debated, but the majority acknowledged that it had prematurely intervened in the proceedings.
Idaho v. United States, now in the hands of lower courts, will likely cycle back to the Supreme Court to determine whether EMTALA preempts the state’s Defense of Life Act. The Supremacy Clause, 200 years of precedents dating back to the early 19th century and, in this instance, judicial comprehension of the fact that the state law does not permit abortions to prevent grave harms to a pregnant woman suggest it will/ might/maybe rule in favor of the U.S. But for now, women in Idaho and America resume the wait.
