Federal judge in abortion appeal asks whether pregnant patients ‘have to be airlifted’ any time ‘the mother wants to kill the baby’

Background: FILE - An attendee at Planned Parenthood

Background: FILE – An attendee at Planned Parenthood’s Bans Off Our Bodies rally for abortion rights holds a sign reading outside of the Idaho Statehouse in downtown Boise, Idaho, on May 14, 2022 (Sarah A. Miller/Idaho Statesman via AP, File). Inset: FILE – In this Sept. 23, 2014, file photo, former Montana Solicitor General Lawrence VanDyke, center, talks with law students before a Montana Supreme Court candidate forum at the University of Montana in Missoula, Mont. (AP Photo/Lido Vizzutti, File)

The full U.S. Court of Appeals for the Ninth Circuit heard arguments Tuesday in a case that will determine whether doctors can perform emergency abortion care without criminal prosecution in Idaho, a state with a near-total abortion ban.

Idaho’s abortion ban contains an exception to save a pregnant patient’s life, but not to prevent other detrimental health outcomes such as loss of future fertility. The federal Emergency Medical Treatment and Labor Act, or EMTALA, requires doctors to provide proper care in an emergency. The Biden administration has argued this care includes providing abortions to patients facing health risks and not just those facing death.

Given the clash between EMTALA and Idaho law, physicians have opted to airlift patients faced with such risks to a facility out of state rather than face legal consequence for what might later be considered a violation of Idaho law. The U.S. Department of Justice sued Idaho in 2022 to block it from enforcing its criminal abortion ban for emergency room physicians who perform abortions for pregnant patients risking health risks on the grounds that such action would be a violation of EMTALA.

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