Biden administration asks Supreme Court to keep abortion access in red-state emergency rooms

WASHINGTON – President Joe Biden's administration on Thursday defended a move to require emergency room doctors to provide stabilizing care to pregnant patients and perform abortions in some circumstances, even if the procedure is illegal in the state where they practice.

That administration guidance, announced last year in response to the overturning of Roe v. Wade, is being challenged at the Supreme Court by Republicans in Idaho in a case that experts say could affect emergency rooms across the nation that are grappling with uncertainty about what doctors can and can't do under the law.

Idaho is asking the Supreme Court to allow it to enforce a law making it a crime for doctors to perform an abortion unless a physician can demonstrate that the mother's life is at stake. But the Biden administration says a separate federal law requires emergency rooms to provide "stabilizing care," including abortions, for a broader range of circumstances than a mother's life, such as if a patient's health is in "serious jeopardy."

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Critics say Biden's move "creates a federal right to abortion in emergency rooms."

Idaho officials say Biden is attempting to interpret the Medicare law at issue into a "federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life and turns emergency rooms into a federal enclave where state standards of care do not apply."

The administration, by contrast, has framed the guidance as clarifying existing federal law. And that federal law, Biden argues, trumps state abortion bans.

"In some cases, the medically necessary care is termination of the pregnancy," the Justice Department told the Supreme Court on Thursday. "And in those limited but critically important circumstances, (federal law) requires the hospital to offer that care."

Women can experience severe medical conditions during pregnancy that would not be covered by exceptions for the life of a mother, the government said in its brief, including sepsis, uncontrollable bleeding, kidney failure, and loss of fertility.

Twenty conservative states, many with strict abortion bans, are backing Idaho. Indiana, Florida, Missouri, Tennessee and Texas are among the states that argued the Biden administration was attempting to execute an "end run" around the Supreme Court's decision to overturn Roe last year. Fourteen states have abortion bans in effect that begin at conception, according to the Guttmacher Institute.

But it's not just in conservative states with strict bans where the Biden administration guidance would have impact.

“This is happening all over the country. We hear story after story of people who are experiencing pregnancy emergencies and they're denied the care that they need,” said Michelle Banker, director of litigation for reproductive rights and health at the National Women's Law Center.

Even states without strict abortion bans – or states with more expansive exceptions than Idaho’s – are affected, Banker said. For one thing, the federal law at issue in the case applies to religiously affiliated hospitals that receive federal funding but decline to provide abortions even though their state law would otherwise allow them.

And with new legislation cropping up in response to the Supreme Court's decision last year, state ballot initiatives like the one recently approved by Ohio voters and a string of court rulings, the legal landscape for doctors is treacherous.

"A lot of physicians have been mired in layers of uncertainty," said Mary Ziegler, a professor at the UC Davis School of Law who follows the abortion issue closely. "They don't know what the exceptions that are on the books mean. They don't know if the (the federal law) trumps those exceptions."

What that has led to in some circumstances, Ziegler said, is a hesitancy from doctors.

"There's just been kind of a massive chilling effect," she said.

Some states’ exemptions work as a defense, meaning that a doctor accused of violating a state abortion ban is still at risk of being investigated and prosecuted and must prove that they were acting within an exception to a ban.

“Physicians still may face fears of imprisonment or loss of their professional licenses or their livelihood for providing an abortion,” Banker said, even if they are technically within the bounds of a state ban's exception.

The administration’s guidance, by contrast, says that under the federal law at issue, doctors are required to provide an abortion if that care is necessary to stabilize the patient’s emergency medical condition.

A federal appeals court in California sided with the Biden administration on a temporary basis earlier this month in the case of the federal law, blocking enforcement of the provisions of the Idaho law at issue. State officials are now asking the U.S. Supreme Court to allow it to enforce the law while the underlying litigation continues.

The emergency appeal, which was docketed on Monday, once again puts abortion before the high court this term: the justices are set to decide in coming weeks whether to hear arguments in a case challenging the Food and Drug Administration’s decades-old approval of the abortion pill mifepristone.

The Supreme Court's decision to overturn Roe, the 1973 decision that established a constitutional right to abortion, has created a flood of legal and political ramifications. Voters in several states, most recently Ohio, have approved additional access to the procedure or have declined to limit it.

This article originally appeared on USA TODAY: Idaho picks Supreme Court fight with Biden on near-total abortion ban