Emergency Abortion Care Is Before the Supreme Court—and Blue States Should Be Very Worried

Mother Jones illustration; Getty

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.Jaelyn was 19 weeks and five days into a much-wanted pregnancy when the cramping began—slowly at first, then in an insistent rhythm that signaled she was in labor. Several excruciating hours later, emergency doctors delivered a heart-wrenching diagnosis. The amniotic sac was protruding from her cervix; her baby was doomed. “There’s nothing we can do,” Jaelyn recalled the on-call OB-GYN telling her, “because if we try to push it back in, it’s very likely you’re going to get an infec­tion. And the baby will die. And it puts you at risk too. So, we have to see this thing through.”
Overwhelmed, Jaelyn begged the doctor, “Can we just get it over with?” Meaning: Could they do a procedure to hasten the inevitable and terminate a pregnancy that was no longer viable and could only lead to more unnecessary suffering? But the doctor told her no. “We cannot assist in it, we have to wait until the baby’s heart stops.” The nursing staff hooked Jaelyn up to a fetal monitor. She and her husband spent the next eight hours watching the machine as their son’s life ebbed away. When there was no longer a heartbeat, the doctor finally intervened.
It’s a scenario that has become horrifyingly common in conservative states since the end of Roe v Wade. Near-total bans on abortion have made it almost impossible for doctors to terminate pregnancies in an emergency, even when the mother’s life is in danger or there’s no chance the fetus will survive. As lawyers for Idaho face off against the Biden administration over the federal statute that requires hospitals to treat and stabilize any patient experiencing a medical emergency, the downstream consequences of pregnant women being denied necessary care are at the heart of what could be the most significant reproductive rights ruling from the Supreme Court since Dobbs.
Jaelyn wasn’t from Idaho or Texas; she lived in a city in the liberal Northeast. The hospital where she went for emergency care wasn’t being forced to comply with a draconian state ban dreamed up by anti-abortion lawmakers; it was a Catholic provider, obliged to follow Catholic teachings even when they conflicted with reproductive protections enshrined in state law. Her story highlights a largely overlooked aspect of the SCOTUS fight over the federal Emergency Medical Treatment and Labor Act (EMTALA). The decision won’t just affect the ability of red states to regulate medical care for pregnant patients. It also has enormous ramifications for a health care sector that is heavily concentrated in blue states with strong abortion protections: Catholic hospitals.
Catholic systems make up the largest group of nonprofit health care providers in the US, caring for one in seven hospital patients every day and accounting for 17.5 million emergency room visits a year. According to the watchdog group Community Catalyst, about 16 percent of acute-care hospitals around the country are Catholic. But in some states, Catholic providers account for a much bigger share of the health care infrastructure, including in such reproductive safe havens as Washington (almost 50 percent), Colorado (around 40 percent), and Oregon and Illinois (about 30 percent each).
Those hospitals—as well as their clinics, pharmacies, and physician practices—follow the Ethical and Religious Directives for Catholic Health Care Services, issued by the US Conference of Catholic Bishops, which ban or limit abortion, contraception, sterilization, fertility treatments, trans care, and physician-assisted suicide. Under the ERDs, Catholic hospitals—even in liberal parts of the country—have long treated pregnancy emergencies in ways that have become chillingly familiar in abortion-ban states. For decades, Catholic hospitals have been “doing as a norm what has now become the post-Dobbs landscape,” Georgetown Law professor and reproductive justice scholar Michele Bratcher Goodwin told my Mother Jones colleague Pema Levy. A SCOTUS decision in favor of Idaho could “further weaponize the arguments used by Catholic hospitals to deny emergency care,” Goodwin warns.
The ERDs ban “direct” abortions, which are defined as any procedure that intentionally results in the death of the fetus. At the same time, the directives do permit “operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman.” Or, as the Catholic Health Care Leadership Alliance summarizes in an amicus brief in the Idaho case, “medical treatments to save the life of the mother that unintentionally cause the death of the unborn child are permitted.”           

How this plays out in Catholic hospital emergency rooms can get complicated, to say the least. Consider a relatively rare but devastating complication known as pre-viable PPROM, when the pregnant patient’s water breaks too early for the fetus to survive. According to leading medical groups such as the American College of Obstetricians and Gynecologists, the standard of care in such cases is to offer the patient a choice: She can wait and see if her condition improves long enough for the fetus to become viable, or she can receive treatment that amounts to an emergency abortion. Any delay in appropriate care can lead to the mother suffering agonizing pain, massive bleeding, and a potentially life-threatening infection.
By contrast, under the ERDs, Catholic providers are not allowed to terminate the pregnancy as long as the fetus is alive—even if it has no possibility of surviving—until the woman’s life is in danger, says Lori Freedman, a professor and researcher at the University of California, San Francisco, whose 2023 book, Bishops and Bodies: Reproductive Care in American Catholic Hospitals, is based on interviews with dozens of medical practitioners and patients. “They cannot treat her [with medications or procedures that will terminate the pregnancy], but watch her and wait for signs of infection to develop,” she says. “They have this requirement—if there is a fetal heartbeat, wait till there’s a threat to the mother’s life. Then they have to save her life. That is a low standard of care.”
Freedman notes that something very similar happened to Jaelyn, whose story she recounts in her book. In dire cases such as hers—which took place pre-Dobbs—the widely accepted standard of care is to terminate the pregnancy if the mother decides that’s what she wants. Instead, Jaelyn was forced to endure hours of agonizing physical pain as her baby slowly died; the emotional pain lasted much longer. “She really felt it to be torture,” Freedman says.
To be fair, Catholic providers often look for workarounds to get pregnant patients the care they need—for example, by sending them to another hospital. But depending on the circumstances, this could run counter to EMTALA’s requirement to provide emergency care, says Elizabeth Sepper, a University of Texas law professor who writes often about reproductive health care and religion. “It’s fair to say that Catholic hospitals have sometimes been violating EMTALA through transfers,” she says, “in ways that patients were probably not aware were caused by the religious identity of those institutions.”
Those hospitals have been able to get away with it because, even in states with strong laws ensuring reproductive access, religious providers are protected by what are known as “conscience” clauses sprinkled throughout numerous state and federal laws. The ACLU has sued Catholic hospitals at least three times in the past decade over their treatment of pregnant patients under the ERDs—and lost.
Now, in the EMTALA case, Catholics and other religious groups are raising the religious freedom argument in a new context. They claim that the Biden administration’s efforts to force hospitals to perform emergency abortions “violates the conscience rights” of providers who have “medical, ethical, or moral objections to the intentional killing of unborn children.” And they threaten that if the Supreme Court rules against the Idaho ban, the result would be “a regulatory domino effect” that would only add to the chaos for pregnant patients around the country. As their amicus brief states, “Over time, many…Catholic healthcare entities would feel pressure to opt out of programs covered by EMTALA so as to avoid the loss of medical licenses, the threat of crushing legal fines, and a hostile regulatory environment…It is hard to overstate the devastating impact that such a scenario would have on the delivery of health care in the United States.”
Meanwhile, the leading Catholic ethics organization advising health care providers has doubled down on its interpretation of the ERDs since the end of Roe. As evidence that Catholic providers can treat emergency pregnancy complications without resorting to abortion, the EMTALA briefs cite a commentary issued by the National Catholic Bioethics Center in August 2022. “When there is no moral certitude that the child has died, surgical abortion procedures of any type…are never permitted,” the NCBC says. Nor, according to the group, is it legitimate to induce labor before a fetus is viable merely because the mother-to-be suffers from a chronic condition such as pulmonary hypertension (a type of high blood pressure that affects the lungs) or cardiomyopathy (when the heart starts to fail) that happens to make her pregnancy exceptionally dangerous.
In cases of ectopic pregnancy—when the embryo implants outside the uterus, usually in the fallopian tube—the NCBC’s preferred approach is “expectant waiting” even though medical experts say any delay in surgery can lead to catastrophic bleeding. In the strange logic of the ERDs, it’s also acceptable to remove the entire fallopian tube, whether or not the embryo inside is still alive. What’s not permitted is any procedure or medication that destroys the living embryo while preserving the fallopian tube. Never mind that an embryo in a fallopian tube has zero chance of survival, or that the removal of the tube could have serious effects on future fertility. “It’s really shocking,” says Elizabeth Reiner Platt, director of Columbia Law School’s Law, Rights, and Religion Project, “that in defending their right to deny emergency stabilizing treatment and claiming that they have other protocols that work, their number one recommendation is to do nothing, and the next best option is a procedure that could reduce someone’s fertility for their entire lifetime when there’s an option that could preserve their fertility. I find that galling.”
To be clear, the conscience rights of religious hospitals aren’t the main focus of the Idaho EMTALA fight. But the Supreme Court’s ultra-conservative majority includes five Catholics—John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett—who have shown themselves to be very receptive to arguments about religious freedom. In this term’s other major abortion case, the conservative challenge to the FDA’s regulation of mifepristone, EMTALA came up repeatedly in oral arguments, Sepper points out. “It certainly does seem like it’s on their minds—how do the conscience protections and EMTALA interact? So I actually think that [the religious argument] will be top of mind even though it’s not really relevant to the legal conflict before them.”