Idaho doctors say emergency abortion protections are welcome, but not enough

Idaho doctors and medical professionals say they’re relieved to have some legal protections to perform abortions as stabilizing care after a U.S. Supreme Court decision was released on Thursday. A preview of the decision was leaked on Wednesday by Bloomberg News.

“This decision to put the case back down to the lower courts does provide some welcome immediate relief for women and their doctors in Idaho,” said Susie Pouliot Keller, chief executive officer of the Idaho Medical Association. “But, given how much uncertainty there still is in Idaho law, there’s still much more work to do.”

Idaho’s abortion law only makes exception to “save the life of the mother,” or in the case of rape or incest.

Idaho Attorney General Raúl R. Labrador has maintained there is no conflict between Idaho’s law and the Emergency Medical Treatment and Labor Act, or EMTALA, which sits at the center of the case.

However, since the state implemented its abortion ban, doctors have consistently said the law is unclear and leaves them fearful they’ll face criminal charges if they perform an abortion before a pregnant person is already on death’s door.

Dr. Duncan Harmon, a maternal fetal medicine specialist at St. Luke’s Medical Center in Boise, said he has had several colleagues leave because of the ban.

“I’m not a legal scholar, I’m a clinician,” Harmon said. “Those who did take the law school training route, they also have argued that that law is not clear. In fact, many of the justices thought that that was unclear.”

Harmon said he’s glad there will be protections for stabilizing care. But the EMTALA protections alone still leave his hands tied in scenarios where pregnancy threatens the health of the mother.

One of those situations might include the case of a premature rupture of membranes, he said, or a case when the mother learns she has a heart condition in which pregnancy significantly increases the risk of heart failure.

“That doesn’t mean that they will die, but they will experience significant health complications,” he said. “And maybe they didn’t know those things before they became pregnant.”

Pouliot Keller said a maternal health exception in Idaho’s law is necessary to provide clarity and stability to Idaho doctors and improve the hospitals’ ability to recruit physicians, particularly OB-GYNs and maternal fetal health specialists.

“We don’t have time to wait for the court process to grind through the months and years to come,” she said. “Idaho is in a situation where we need relief now.”

Health care providers and groups such as the Idaho Medical Association have been pushing for such an exception since Idaho’s abortion ban went into effect, but have so far been unsuccessful.

Idaho has lost 22% of its OB-GYNs since Roe v. Wade was overturned two years ago, according to a report by the Idaho Coalition for Safe Health Care.

For hospitals hiring new OB-GYNs and maternal fetal medicine doctors, physicians’ hesitancy to practice in a state that bans abortion makes recruitment extremely difficult and lengthy, said Greg Morrison, the president of the Idaho Hospital Association.

“There are several of our members that are struggling to hire OB-GYNs,” he said. “Maternal fetal medicine docs, as well. Those searches are going sometimes six months, eight months, even up to a year before they can find somebody that’s willing to come and practice that kind of medicine.”

Several Idaho hospitals have closed their labor and delivery units because of the ban. 

Most recently, the West Valley Medical Center in Caldwell closed their unit in April.

Pouliot Keller said some legislators fear adding a health exception to the ban would create a loophole for anyone who wants an abortion. But neighboring Utah has a health exception in its ban, she said.

“I don’t think anybody would hold Utah out as a safe haven for folks seeking abortions for any such reason,” she said.

Peg Dougherty, deputy general counsel for St. Luke’s, said doctors need the trust of lawmakers.

“The legislation needs to empower physicians to use their medical judgment, to not only prevent the death of a patient, but to protect that patient’s health,” she said. 

Harmon said right now, criminal penalties are just too big a risk for doctors to provide abortion care when they’re not certain the law will protect them.

“I want to work in the best way that I can to care for my patients,” Harmon said. “My top priority is my own family. And I need to be there for them. I would love to be a martyr for my job. But not all of us can do so.”

At the time of the oral arguments for the case on April 24, St. Luke’s had transferred six patients out of state for services unavailable in Idaho.