A month after Kelsey Norris de la Cruz was denied treatment by a Texas hospital due to life-threatening pregnancy complications, the 25-year-old college senior learned about a federal law that could have protected her from one of the most terrifying medical events of her life.
Norris de la Cruz said she felt she had some power just because she knew about the Emergency Medical Treatment and Labor Act, known as EMTALA. The federal government requires doctors and hospitals to provide abortions in emergency situations like hers, even in states where abortion is illegal. She hoped that if she had another high-risk pregnancy, she could invoke federal law to demand treatment.
“Mtala, mtala, mtala,” she imagined saying to the doctor who, in February, had refused to abort her ectopic pregnancy, a dangerous condition in which the fetus implants outside the uterus. “If you don't help me, I'm going to call the police.”
Norris de la Cruz was shocked to learn Thursday that the Supreme Court had allowed emergency abortions to resume in Idaho for now but not broadly affirmed EMTALA's protections for abortion care, leaving patients with pregnancy complications in limbo, unsure of what care they'll get at hospitals in states with strict anti-abortion laws.
If the Supreme Court had fully protected emergency abortions, she said, “I would feel like I had the power … the means to control my body and my life.”
“I'm on birth control now, but I'm still scared.”
A June 27 ruling allows emergency abortions in Idaho to be performed to stabilize patients while litigation continues. Health reporter Dan Diamond explains. (Video: Drea Cornejo/The Washington Post)
The Supreme Court's decision provides temporary relief to the Idaho doctors at the center of the lawsuit. But the justices chose not to answer the larger question of whether EMTALA, a 40-year-old law, requires health care providers nationwide to offer abortions if a doctor determines a pregnant woman's condition needs to be stabilized. The Biden administration has repeatedly asserted that position since 2021, and abortion opponents have been working to overturn Roe v. Wade and nationwide protections for abortion in 2022.
The case now heads to the Ninth Circuit Court of Appeals, where it will continue. Idaho Attorney General Raul R. Labrador said in a conference call with reporters that he hopes the judges there “will interpret the findings from the Supreme Court and understand that we need to put an end to the Biden administration's abuse of power.”
The Supreme Court's decision, which was only made public on Wednesday after the court mistakenly published a near-final version of its ruling, leaves the nation's abortion landscape in limbo.
Doctors and hospitals across the South and Midwest are still deciding which pregnancy complications they can legally treat under narrow medical exceptions in anti-abortion laws, federal officials are battling state leaders over whether state abortion bans or federal emergency medical laws take precedence, and abortion opponents are bracing for months more of litigation over EMTALA laws and whether to force health care providers that receive Medicare funds to follow their interpretation of the federal law.
And women in Texas, including Norris de la Cruz, still lack federal protections for emergency abortions: A lawsuit filed by the state means the Biden administration's EMTALA guidelines no longer apply in Texas after 2022.
“This is not a victory, it's a delay,” said Nisha Verma, an obstetrician-gynecologist at a large hospital in Georgia who frequently sees women with high-risk pregnancy complications. “With this back and forth, we can't just provide medical care. … We have to analyze what the court is saying, which creates more uncertainty.”
Georgia's six-week abortion ban includes exceptions for medical emergencies and “medically futile” pregnancies, but Verma said implementation of those exceptions varies widely from state to state. While Verma's facility tries to provide clear guidance about what pregnancy symptoms doctors can treat, she said many of her colleagues at other Georgia hospitals have to make these decisions for themselves, knowing that making the wrong choice could result in a felony conviction.
She hoped the Supreme Court would send a clear and resounding message that doctors can always provide stable care in emergencies.
Instead, she said, they'll have to wait.
In Idaho, shortly after Roe was overturned, Biden administration officials challenged the state's strict abortion ban, arguing that the law needed to allow abortions when the mother's health is at risk. The case has been bouncing around the courts since then, with rulings and injunctions forcing doctors to reconsider the circumstances under which they can legally provide abortions.
The Supreme Court's decision gave Idaho doctors a temporary reprieve, once again allowing them to recommend abortions if they believe a woman's health is at risk.
When Sarah Thompson, an obstetrician-gynecologist in Idaho, first heard about the draft decision posted online on Wednesday, she had time only to glance at the headline, and felt a great sense of relief when she saw that the power to provide emergency abortions was restored.
She said her feelings changed later that day when she returned to read more about the decision and realized it was temporary.
“The general view among physicians was, 'Well, once this gets to the Supreme Court, we'll have a final decision,'” Thompson said. “It's disappointing to know we have to wait again.”
Thompson added that the travel has been an extremely taxing “roller coaster” and so tumultuous that many of Idaho's obstetrician-gynecologists have recently chosen to leave the state.
The unrest has drawn Biden administration officials and reproductive rights advocates to Idaho, and the nation's top health official, Health and Human Services Secretary Xavier Becerra, met with Thompson and other health care workers in Boise on Wednesday and vowed to protect access to emergency abortions.
“Anyone in America who is at risk of death and needs to go to an emergency room should be able to go to an emergency room. That has always been our position,” Becerra said. “It doesn't matter if an abortion is the treatment that a medical professional says is necessary to stabilize their health or save their life.”
The Biden campaign has highlighted EMTALA and pledged to continue efforts to help women quickly file complaints about abortion denials, and said the protracted fight over the emergency medical law is still months or years away from being resolved, underscoring the importance of a presidential election that pits Biden, who has sought to protect abortion access, against Donald Trump, who appointed the three justices who overturned Roe.
Another victory for the anti-abortion movement may be on the way. Idaho Attorney General Labrador said she was encouraged by the Supreme Court's opinion on Thursday, citing examples of Justices Amy Coney Barrett and Samuel A. Alito Jr. siding with her state and of what she said was an important concession by the Biden administration.
“We are confident that we will ultimately win this case,” Labrador said, adding that she also argues that Idaho protects the right to an abortion if a woman's life is at risk.
“Our law is very clear, yet there is a pro-abortion agenda that tries to confuse doctors and make them afraid of what the law says,” Labrador said, adding that doctors shouldn't be overly concerned about being prosecuted for abortions. “Doctors get sued for malpractice all the time, so they think they get sued all the time…There are very different standards for malpractice and criminal prosecution.”
State and national leaders have warned that the Supreme Court's recent decisions have left America in a patchwork system that restricts abortion in some states and turns others into a stop-off point for women seeking abortions.
Massachusetts Governor Maura Healey (D) took executive action on Monday to preemptively protect access to emergency abortions in the state in case the Supreme Court strikes down EMTALA.
“We already have women who have been pushed to the brink of death because they couldn't get life-saving emergency care,” Healey said in an interview Wednesday. “It's really important in states like Massachusetts to clarify the law and protect patients and health care workers.”
Two years after Roe was overturned and replaced with a confusing mix of state abortion bans and often-overlooked federal guidance, many patients say they desperately need clarity.
In February, Norris de la Cruz was referred by a close friend to her obstetrician-gynecologist, who eventually treated her for an ectopic pregnancy at another hospital in Texas. Her pregnancy had already started to rupture, and she underwent emergency surgery, according to medical records and interviews with the doctor.
Norris de la Cruz said she thinks about the episode all the time.
“If fate hadn't intervened, I would be dead,” she said.
She said the Supreme Court decision made her think of all the other women who may find themselves in similar situations without the protections of federal law.
“It makes you wonder when they'll think, 'enough is enough,'” she said. “They have the choice to save women, and they choose not to.”
