Idaho bans abortions in some medical emergencies. What can doctors do?

Idaho can now fully enforce its abortion ban, which prohibits abortions even in some medical emergencies.^[]

Initially activated as a trigger law, Idaho Code section 18-622 makes it a crime for healthcare providers to perform an abortion unless they have determined with “good faith” that abortion is necessary to save a pregnant person’s life. The code was partially suspended in August when a federal judge found that it may violate the Emergency Medical Treatment and Labor Act (EMTALA), an act that requires hospitals to provide stabilizing care, including abortions if necessitated by a medical emergency. Now, a San Francisco–based appeals court has ruled that Idaho’s law does not conflict with EMTALA.^[]

Per the ruling, Idaho’s law can now be fully enforced as written. This means that abortions can legally be performed in life-threatening scenarios but not all medical emergencies.

Defining a life-threatening medical emergency

In Idaho, differentiating between life-threatening scenarios and other medical emergencies may come down to “good faith” judgment. If providers interpret this to mean they should hesitate before providing emergency care, this could have dangerous implications for vulnerable patients. However, if they continue to prioritize their patient's health and safety, they may be able to serve patients in medical emergencies while following the law.

“Anytime a woman’s life is in danger, a termination can and must be performed,” says Greg Marchand, MD, a board-certified OB/GYN in Arizona, where he says he performs abortions if a mother’s life is in danger.

Dr. Marchand adds that “there is nothing in the statute that says you must wait until a mother is ‘close to death’ [or] ‘actively dying’” to perform a medically necessary abortion.”

The definition of a medical emergency is also fluid and can vary from patient to patient and from one provider’s judgment to another's.

In 2022, the American College of Obstetrics and Gynecology (ACOG) addressed confusion around navigating medical emergencies in a post-Roe world. Posing the question, “[H]ow sick is sick enough to intervene?” ACOG wrote that “it is impossible for a law to appropriately capture how or whether a ‘medical emergency’ exception applies to a particular clinical situation.”^[]

The organization continued to say that it would be dangerous and “impossible to create an inclusive list of conditions that qualify as ‘medical emergencies,’” and encouraged providers to act with their patient’s best interests—and their best medical expertise—in mind. 

Yes, EMTALA does pertain to abortion care

The appeals court found that Idaho’s law does not violate EMTALA—but EMTALA still applies to abortion care.

Xavier Becerra, United States Secretary of Health and Human Services, emphasized the EMTALA’s explicit relevance to abortions this May.

In a statement to hospitals nationwide, Becerra stressed that denying abortions in emergency scenarios violates the law. He pointed to two incidents where a “patient was not offered the care that her doctors determined was necessary…because the hospital policies would not allow an abortion to be performed.”^[]

“As we have made explicitly clear: we will use the full extent of our legal authority, consistent with orders from the courts, to enforce protections for individuals who seek emergency care – including when that care is an abortion,” Becerra wrote.^[]

Communication is key

In some emergency scenarios, you might be able to both help your patient and follow the law. If you cannot determine that an abortion is necessary to protect your patient's life, however, you may need to talk to them about other options or advise that they visit another state to have a procedure.

Parijat Deshpande, MS, a wellness counselor and consultant for women with high-risk pregnancies, says that consent and “clear communication about options” are imperative in any situation involving abortions or potential abortions.

Make “sure the patient understands all of their options and the related known and unknown consequences of each option,” Desphande says. “Tell her what you're going to do before you're going to do it.”