Will SCOTUS Allow Pregnant Women to Die?

Updated Monday, June 24, at 10:15 a.m. PT.

A decision from the U.S. Supreme Court will be coming any day now in two cases, Idaho v. United States and Moyle v. United States, about whether states can prohibit doctors from treating women with life-threatening pregnancies until a patient’s condition deteriorates to the point where they are about to die.

The National Women’s Law Center (NWLC) filed an amicus brief in these cases describing several of the more than 70 documented cases of women almost dying—and at least one who did die—when they were denied emergency medical care because of abortion bans enacted across the country after the Supreme Court overturned Roe v. Wade in June 2022. And “the true number of cases is likely significantly higher,” according the NWLC brief. 

In these cases, the Department of Justice (DOJ) is challenging Idaho’s “Defense of Life Act,” which prohibits abortions unless necessary to save the life of the mother. The DOJ argued that Idaho’s law violates the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires Medicaid-funded hospitals to provide medically necessary stabilizing treatment to patients, including pregnancy termination, regardless of state laws restricting or banning abortion. The DOJ argued doctors violate federal law if they wait until a patient’s condition deteriorates to the point where they are about to die before doctors provide the necessary care to stabilize them.

Federal law requires federally funded hospitals to provide “necessary stabilizing treatment” to any patient with an emergency medical condition that, in the absence of medical attention, could reasonably be expected to result in putting a patient’s health in serious jeopardy, including “serious impairment of bodily functions or serious dysfunction of any bodily organ or part.”

The Idaho law prohibits treatment until a woman is on the brink of death, without regard to the impacts on her health otherwise.

“It’s not harmless to wait until the brink of death to intervene in emergency medicine,” said emergency room physician Dr. Dara Kass at Columbia University Medical Center. “Having to wait until that window to intervene is dangerous for people… [and] will have consequences to your life and future fertility and organs and a lot of other things.”

Oral Arguments Overview

On April 24, the Supreme Court held two hours of oral arguments on whether states can require women to sacrifice their health and well-being in order to continue nonviable pregnancies. 

Idaho’s attorney Joshua Turner argued that women experiencing pregnancy complications have no federal right to medical care unless they are dying. Justices Samuel Alito and Clarence Thomas clearly agreed, and Justices Neil Gorsuch and Brett Kavanaugh also appeared to agree. These five men expressed utter disregard for women’s lives and dignity.

The bipartisan group of women on the Court were the only ones asking questions reflecting concern about the impact of the decision on women’s lives and health—demonstrating the importance of having women on the Court.

Chief Justice John Roberts said hardly anything.

NWLC Brief: Harrowing Stories of Denied Emergency Medical Care

The National Women’s Law Center brief detailed the excruciating stories of several pregnant women denied emergency medical care, demonstrating the harms of such denials.

One involved a woman experiencing preterm premature rupture of membranes (PPROM), which is when the amniotic sac or “water” breaks prior to 37 weeks. PPROM complicates 2 to 4 percent of all singleton pregnancies and 7 to 20 percent of twin pregnancies, and impacts 150,000 women in the U.S. every year. In states banning abortion, women experiencing PPROM face life-threatening dangers.

The NWLC brief outlined:

One patient experienced PPROM before her fetus was viable. The stabilizing treatment for pre-viable PPROM may be terminating a patient’s pregnancy, either through an induction of labor or a dilation and evacuation (D&E)—a routine procedure. But this patient was sent home without that care. She returned to the emergency room two days later with severe sepsis and bacteremia.

Her pre-viable fetus was delivered, but clinicians could not deliver her placenta. Eventually, a physician performed a D&E, but unlike healthy patients, this woman bled “from everywhere.” The patient miraculously lived, but after her gut-wrenching experience, the concern she expressed to her doctor was whether her severe infection “count[ed] as life-threatening,” or whether she and her doctor would “go to jail” for the procedure that saved her life.

Another story involved hospital anesthesiologists, who refused to provide an epidural to a woman in early labor because he feared criminal prosecution:

Another patient in an abortion ban state sought treatment for a dilated cervix, through which her amniotic sac was protruding, when she was 19 to 20 weeks pregnant. She was sent home.

The following day, she came to the emergency department in severe pain and advanced labor. While EMTALA requires stabilizing treatment for pain and stabilizing care during labor, the hospital’s anesthesiologists refused to provide an epidural.

As the patient’s physician described:

“[The anesthesiologists] believed that providing an epidural could be considered [a crime] under the new [state] law. The patient received some IV morphine instead and delivered a few hours later but was very uncomfortable through the remainder of her labor. … I overheard the primary provider say to a nurse that so much as offering a helping hand to a patient getting onto the gurney while in the throes of a miscarriage could be construed as ‘aiding and abetting an abortion.’ Best not to so much as touch the patient who is miscarrying…”

Denial of emergency care not only endangers the lives and health of pregnant women, but can cause devastating financial impacts—including the costs of traveling out of state to obtain emergency treatment, lack of insurance coverage for out-of-state care, and absence from work, which can endanger employment status.

These impacts are particularly burdensome to low-income patients and their families:

Mylissa Farmer was denied the emergency abortion care she needed, first by her local hospital in Missouri, and then by a hospital in Kansas. After diagnosing her with PPROM, doctors at both hospitals told Mylissa her fetus could not survive, and continuing her pregnancy would put her at risk of serious infection, hemorrhaging, the loss of her uterus, and even death.

Still, both hospitals refused to end the pregnancy, in violation of EMTALA. With her health deteriorating rapidly, Mylissa and her boyfriend drove more than four hours to an Illinois abortion clinic while she was in labor. 

The medical and financial consequences of crisscrossing state lines to obtain life-saving abortion care linger to this day. Mylissa was docked pay for missing work and had to raise funds to pay for the Illinois care that her insurance refused to cover. Her boyfriend also lost his job because he was forced to miss work over the days he helped her travel. They could not regain steady employment for months.

Yeniifer Alvarez’s Story

Some women never get the care they need. The NWLC brief details the case of one young woman, Yeniifer (Yeni) Alvarez, who died from pregnancy complications after a Catholic hospital in Texas failed to offer stabilizing abortion care. 

Yeni lived in an immigrant community in Luling, Texas, where 65 percent of residents lack health insurance—Yeni included. She learned she had hypertension and diabetes during her pregnancy, and developed pulmonary edema at the height of the COVID-19 pandemic. Because she was uninsured, she was unable to afford the care and medications needed. As her condition deteriorated, she went to the emergency room multiple times, but doctors did not offer abortion care. 

Experts agree that Yeni’s death likely could have been prevented with an abortion, but hospital records show that, despite multiple emergency room visits (including one where she was struggling to breathe), healthcare providers never offered to end her pregnancy. 

Yeni’s death represents what the lack of access to healthcare can mean for a pregnant person marginalized by lack of health insurance, poverty, and a draconian abortion ban. 

As Yeni’s family mourn her preventable death, her loss has led to serious financial and familial hardship because Yeni contributed to the mortgage payments and was a frequent caregiver for a cousin and an autistic sibling.

How Abortion Bans Harm Reproductive Healthcare Access Overall

Pregnancy in the United States is now 10 times more lethal than in other high-income countries, the National Women’s Law Center points out. Pregnant Indigenous women die twice as often as white women, while Black women die three times as often as white women. 

States restricting abortion have much higher maternal mortality rates than states with abortion access. In 2020, restrictive states had a 62 percent higher maternal death rate than other states, and experts estimate that total abortion bans today are causing a nearly 25 percent increase in maternal mortality overall.

One third of counties in the United States are “maternity care deserts,” with no obstetric providers, hospital-based obstetric care or birth centers. And Dobbs has worsened this dearth of providers.

In the first 15 months after enacting an abortion ban, Idaho—the state at the heart of the EMTALA case in front of the Court—lost 22 percent of its practicing obstetricians and 55 percent of its high-risk obstetricians. At least two Idaho hospitals closed their labor and delivery units in 2023. 

Obstetric providers are moving away from states where they cannot save their patients’ lives and health without the looming threats of imprisonment, bankrupting civil penalties and losing their medical licenses.

“With fewer providers, all pregnant people, especially Black and Indigenous people, will suffer life-changing harms, and many will die preventable deaths,” argued the NWLC brief.

One third of counties in the United States are ‘maternity care deserts,’ with no obstetric providers, hospital-based obstetric care or birth centers. And Dobbs has worsened this dearth of providers.

Louisiana’s abortion ban is endangering the lives of women needing emergency medical care for pregnancy complications, as shown by a recent report, “Criminalized Care: How Louisiana’s Abortion Bans Endanger Patients and Clinicians,” by Lift Louisiana, Physicians for Human Rights, RH Impact and the Center for Reproductive Rights.

It also documented how some doctors in Louisiana are doing medically unnecessary and dangerous cesarean sections instead of safe abortions due to fears of violating the law.

“The bans’ narrow and ill-defined exceptions create confusion, uncertainty and fear for both pregnant patients and clinicians, who face significant professional, civil and criminal penalties for providing the patient-centered and compassionate care they were trained for and could legally offer before Roe v. Wade was overturned,” according to the report.

EMTALA and the Need for Clarification

In addition to the federal government’s attempts to enforce EMTALA, the Center for Reproductive Rights (CRR) has filed lawsuits in Tennessee, Oklahoma and Idaho asking states to clarify whether doctors can offer emergency medical care to pregnant patients experiencing complications, sharing many harrowing stories of pregnant women and their doctors.

On May 31, the Texas Supreme Court issued a devastating ruling in a parallel case, Zurawski v. Texas, rejecting the most significant challenge to Texas’ new abortion laws yet and ruling that the medical exceptions in the state’s anti-abortion laws were broad enough to withstand constitutional challenge.

Confusing language and non-medical terminology in the law has left doctors uncertain about when they are legally able to provide abortion care without being prosecuted.

Center for Reproductive Rights

In the Tennessee case, Blackmon v. Tennessee, the Center for Reproductive Rights is asking a court to clarify what circumstances qualify under the “medical emergency” exception in Tennessee’s abortion ban. CRR filed the case on behalf of nine plaintiffs: seven Tennessee women denied medically necessary abortion care who faced severe and dangerous pregnancy complications, and two Tennessee physicians who have been prevented from offering their patients the medically indicated treatment during obstetrical emergencies. 

“Confusing language and non-medical terminology in the law has left doctors uncertain about when they are legally able to provide abortion care without being prosecuted,” argued CRR.

Doctors in the state face loss of licensure and up to 15 years in prison for violating the law, while the law forces pregnant women to either wait until they are near death to receive care or flee the state if they have the means to do so.