On Wednesday, the Supreme Court heard arguments about whether Idaho's strict abortion ban applies to emergency situations. Since the ban went into effect, the state's largest hospital system said the number of people needing flights out of Idaho for emergency abortions has risen sharply.

In 2023, Idaho's ban on emergency abortions was put on hold by a federal court. St. Luke's Health System said they only had to send one patient out of state for an emergency pregnancy termination that year. In January, the Supreme Court lifted the hold, and St. Luke's said it had to airlift six patients to neighboring states for emergency pregnancy terminations in the following three months.

"If we annualize that, we can anticipate up to 20 patients needing out of state care this year alone," said Dr. Jim Souza, chief physician at St. Luke's.

Idaho's law allows physicians to terminate pregnancies only to save the life of the mother, not to preserve her health. In 2022, a federal court said Idaho's definition of a medical emergency may be too narrow, and put that part of the law on hold. The Supreme Court lifted that hold in January while it considers the case.

Before then, Souza said, emergency doctors acted as quickly as possible to protect the patient's health and future reproductive capacity. But since January, he said, doctors have been left second-guessing when to intervene.

"Is she sick enough? Is she bleeding enough? Is she septic enough for me to do this abortion and not risk going to jail and losing my license?" Souza said doctors ask themselves, during a press call ahead of the Supreme Court hearing. "And when the guessing game gets too uncomfortable, we transfer the patients out at a very high cost to another state where the doctors are allowed to practice medicine."

Sending patients away is a wasteful use of hospital resources and is dangerous to patients, he added.

"Putting somebody in a whirlybird and flying them to another state creates an obvious delay in care," Souza said. "If she is in transit and begins hemorrhaging very quickly, the resources you have are no longer the resources of a tertiary care center. They're the resources of a helicopter."

Idaho Attorney General disputes numbers

At a press conference following the opening arguments at the Supreme Court Wednesday, Idaho Attorney General Raúl Labrador suggested St. Luke's was airlifting patients, "just to make a political statement."

He said the hospital system talking about the number of patients flown out-of-state for emergency abortions is "misinformation."

"I have talked to doctors in the ER, the same ER rooms that they're talking about," Labrador said at the press conference, "and they are telling me that they have no idea what this administrator is talking about."

In an email responding to Labrador's comment, St. Luke's stood behind their numbers and said the patients were transported out-of-state, "to protect their health and prevent material deterioration and/or loss of organ function; not to prevent death."

"We do not have any way of knowing who Attorney General Raul Labrador spoke to related to out-of-state patient transfers for pregnancy complications, but what we can share with confidence is our data," the statement reads.

Labrador also criticized the U.S. Attorney fighting Idaho's law before the Supreme Court for using St. Luke's numbers in her argument.

"They're trying to scare people into compliance with something that they want to do," he said.

Arguments against Idaho's abortion ban

When presenting in front of the justices, Attorney Elizabeth Prelogar said the rise in transfers of pregnant patients in crisis was "untenable."

"If a woman comes to an emergency room facing a grave threat to her health, but she isn't yet facing death, doctors either have to delay treatment and allow her condition to materially deteriorate, or they're airlifting her out of the state so she can get the emergency care that she needs," she said.

The U.S. government argues that conflicts with the Emergency Medical Treatment and Active Labor Act, or EMTALA, a federal mandate requiring hospitals receiving Medicare funds stabilize patients in an emergency.

Laborador disagrees.

"The reality is that our law is very clear," he said Wednesday.

"It protects doctors, it protects women, it protects unborn children, and it ensures that the doctors can use a subjective standard if they believe that the life of the mother is in jeopardy," he said, adding in those cases the law allowed them to perform an abortion.

Physicians, hospitals and medical associations say a consequence of Idaho's abortion laws has been an exodus of reproductive health specialists from the state. The Idaho Coalition for Safe Healthcare says a study they've done shows that the state has lost 22% of its obstetricians and gynecologists since the bans went into effect.

Since the repeal of Roe v. Wade in 2022 allowed Idaho's new abortion laws to go into effect, Idaho physicians can face felony charges, up to five years in prison and loss of their medical license for providing abortions that do not fall under the laws' exceptions. Those include in case of rape, incest and if the life of the mother is at risk.

In July 2023, Idaho's abortion ban was amended to exclude ectopic and molar pregnancies, which if not terminated can only result in the death of both the mother and the fetus.

But some doctors have said the text still conflicts with their duty of care and does not take into account the broad scope of severe medical complications women can face during pregnancy, including loss of fertility.

Since Idaho's bans went into effect, no physicians have been prosecuted in the state.

The Supreme Court is expected to provide a ruling by summer.

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