A compromise on emergency abortions that red states should embrace

It is time for states that have banned abortion to put an end to the horror stories of women being refused emergency medical treatment when their pregnancies go terribly wrong. The states can do this in a perhaps surprising way — by tweaking a solution that the Biden administration proposed.

When I ask my anti-abortion friends about these situations, they become unhappy. They don’t know how to respond. They are decent people who don’t mean to hurt anyone, and in these cases — a ruptured amniotic sac, a bleeding placenta and the like — the fetus is going to die anyway. It makes no sense to endanger a woman’s life or health in order to keep the fetus alive for a few more hours.

With Trump back in power, pro-lifers have the ability to protect these women — without opening the door to any non-emergency abortions. They are in charge. They can draft the regulations. Will they?

The Biden administration invoked the Emergency Medical Treatment and Labor Act, which requires that, when a patient has an “emergency medical condition,” the hospital must “stabilize” them, assuring that the patient’s condition won’t worsen when they’re discharged or transferred.

It sensibly proposed that this creates an obligation to end a woman’s pregnancy when faced with disaster. EMTALA creates a safe harbor for the emergency cases while preserving those bans in every case in which there is a reasonable chance to keep the fetus alive — all without needing to enact new legislation.

Had the regulation taken effect unopposed everywhere in the country, pro-choice advocates like me would have lost one of our best rhetorical weapons. That’s fine — let the weapon go. Like the abortion opponents, I don’t want to hurt anyone. So why were we not working together?

But states with abortion bans fought back, leading to the Supreme Court’s bizarre gyrations in Moyle v. United States. Abortion opponents read Biden’s EMTALA claim in wildly overbroad ways. They worried, for instance, that it would authorize abortions for mental health purposes — which, they feared, would be deployed to authorize fully elective abortions for any woman who claimed to be suicidal. But this misrepresents what happens in emergency rooms, which never perform abortions for mental health reasons. Biden’s opponents also misrepresented the medical facts, denying conditions that actually occur, and so casting doubt on the idea that abortion could ever be necessary to preserve a woman’s health.

Pregnant women sometimes face medical emergencies that put them at risk of serious harm — but not death — if the pregnancy is not terminated. Uterine hemorrhaging, for example, can require hysterectomy or produce kidney failure, requiring lifelong dialysis. Preeclampsia can produce seizures, blindness or hypoxic brain injury. Rupture of the amniotic sac can lead to sepsis or organ failure. When these happen early in pregnancy, the fetus cannot survive, but these consequences can be prevented by early abortion. (If they happen after viability, abortion isn’t relevant, because the standard of care is to deliver the baby.)

The Moyle case involved Idaho’s statute, which criminalizes any abortion that is not “necessary to prevent the death of the pregnant woman.” That obviously conflicts with the EMTALA. So a federal court blocked the Idaho law from operating in such emergency cases.

In January 2024, the Supreme Court stayed the lower court’s injunction. Thereafter, for months, women facing medical emergencies were routinely airlifted out of Idaho. In the end, the court embarrassingly dismissed the case as improvidently granted.

Justice Amy Coney Barrett seized on a concession the state had made in its argument: Idaho claimed that emergencies such as premature rupture of membrane actually fell within the law because the term “imminent” did not in fact require temporal imminence, so that perhaps there was no incompatibility with EMTALA after all. This was an implausible interpretation. The Idaho law allows abortion only to prevent death, while EMTALA demands abortion when health would be severely impaired. Idaho’s counsel couldn’t explain how abortions could be permitted in cases where women face permanent, non-life-threatening injuries such as brain damage or loss of fertility. And the state’s representations in an appellate argument had never been embraced by the state Supreme Court, and do not constrain its prosecutors.

Now that Biden is no longer president and the federal litigation is certainly about to end, abortion opponents should offer their own reading of EMTALA that permits abortions only in those cases where the fetus is doomed and the woman faces serious bodily harm. The Trump administration is likely to act lawlessly, by simply declining to enforce a statute it doesn’t like. But there is a better way. It can write the regulation in a way that makes clear that abortions are not available for mental health emergencies. It can declare that emergency abortions are permissible only in cases where the fetus is certain to die anyway.

And of course this question is not entirely up to the Trump administration. States are now free to regulate abortion as they like. They can amend their own statutes to reach the same result — preventing grave, life-endangering injury to women who had no interest in abortion, and were merely trying safely to bear children.

Why would they not do that?

Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed.”

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