ACLU Brief in Emergency Abortion Case Sounds Alarm on Dangerous Fetal Rights Argument

WASHINGTON — The American Civil Liberties Union (ACLU) and ACLU of Idaho filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit today in Idaho and Moyle, et al. v. United States. The case was previously brought to the Supreme Court by Idaho politicians seeking to disregard a federal statute — the Emergency Medical Treatment and Labor Act (EMTALA) — and put doctors in jail for providing pregnant patients necessary emergency medical care. Earlier this year, the U.S. Supreme Court dismissed Idaho’s appeal without resolving the core issues in the case, and sent it back to the Ninth Circuit, which will hear oral arguments in December. Cooley LLP assisted with the amicus brief.

The amicus brief filed today explains that Idaho’s attempts to exclude emergency abortion from EMTALA contradict the plain language of the statute and how the law has been enforced for decades. The brief also sounds the alarm on the extreme arguments by the Idaho Legislature and Attorney General. They claim that parts of EMTALA intended to clarify and expand protections for pregnant people should now be used to deprive pregnant people of critical, even life-saving, care. In particular, the Attorney General’s radical arguments would essentially transform EMTALA into a federal emergency abortion ban. It is clear that in making these arguments Idaho is following the dangerous roadmap laid out in Justice Samuel Alito’s earlier dissent to give rights to embryos and fetuses under the statute that would override the rights of the pregnant person.

“The Supreme Court’s refusal to clearly affirm the rights of all pregnant people to emergency abortion, and put an unequivocal end to the attacks by extremist politicians on this essential health care, was a dangerous preview of what was to come,” said Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project. “Now, Idaho is not only fighting to resume its deadly ban on emergency abortion care, but is invoking the language of fetal rights to deny pregnant patients basic control over their bodies. This law might be about emergencies, but what is at stake in this case is nothing less than the health, dignity, and autonomy of pregnant people across the nation.”

“We warned Idaho’s lawmakers that banning abortion would create undue harm to pregnant Idahoans, and unfortunately, our prediction has come true,” said Leo Morales, executive director of the ACLU of Idaho. “Not only are there many stories of patients having to leave Idaho to get necessary and/or emergency care, but entire maternity wards have shut down as a result of these dangerous laws. We are asking the court to understand and recognize that barring and even punishing doctors for providing life-saving medical care is a draconian way to strip them of their responsibility as medical providers, place patients in a state of harm, and strip Idahoans of their right to bodily autonomy.”

The Department of Justice (DOJ) first sued Idaho in August 2022, seeking an injunction to allow patients to receive abortions in emergency circumstances. The case argues that EMTALA — a nearly 40-year-old federal statute that requires hospitals that receive Medicare funds to provide emergency stabilizing treatment to any patient who needs it — prevents Idaho from banning emergency abortions.

After Idaho appealed its case to the Supreme Court, the court sent the case back to lower courts in June 2024. Although the Supreme Court’s decision temporarily allowed emergency abortions to resume in Idaho, it did not address the underlying issues of the case. The Supreme Court has failed to definitively hold once and for all that every pregnant person in this country is entitled to the emergency care they need to protect their health and lives, which will only continue to put pregnant people at risk. Indeed, this is precisely what happened, earlier this month when the Supreme Court refused to block a ruling prohibiting the federal government from enforcing EMTALA to require emergency abortion care in Texas,

Medical professionals, including the American College of Emergency Physicians, American Hospital Association, American Medical Association, and American College of Obstetricians and Gynecologists, have underscored that doctors must be able to provide their patients with the emergency abortion care they need.

Idaho is home to one of the most restrictive abortion bans in the country, which went into effect following the Supreme Court’s decision on Dobbs v. Jackson Women’s Health Organization in 2022. As a result of this ban, medical providers have found themselves having to decide between providing stabilizing care to a pregnant patient and facing criminal prosecution from the state, or declining medical care and leaving a patient in crisis while facing federal sanctions for violating EMTALA.

As a result, Idaho has lost nearly 1 in 5 obstetricians and gynecologists, who have chosen to leave the state and practice elsewhere. This has led to hospital obstetrics programs around the state shuttering their doors.