Supreme Court’s decision on emergency abortions: Overview for employers  

The legal effect of the US Supreme Court’s ruling in Moyle v. US and Idaho v. US is that, while the litigation continues, Idaho can’t limit emergency room abortions to only those situations where a pregnant person’s life is at risk. But questions remain and access to quality reproductive healthcare may still be challenging in Idaho and other parts of the country, particularly for those with pregnancy complications. There are, however, a number of practical steps employers can consider to assist employees living in states with abortion bans or regions experiencing a shortage of reproductive healthcare providers.   

Case overview

In a per curiam decision in the consolidated cases, the Court avoided addressing the question presented – whether the federal Emergency Medical Treatment and Active Labor Act preempts Idaho’s abortion ban – and instead effectively reinstated the district court’s preliminary order prohibiting enforcement of the state law while the litigation continues.  

Enacted in 1986, EMTALA requires that all patients presenting to an emergency department receive appropriate medical screening and, if an emergency medical condition exists, stabilizing treatment (or transfer if the facility and staff can’t provide the stabilizing treatment). An emergency medical condition is defined to include a condition that, in the absence of immediate medical attention, could place the health of the individual in serious jeopardy or result in the serious impairment to bodily functions or serious dysfunction of any bodily organ or part. Idaho is one of six states (Arkansas, Mississippi, Oklahoma, South Dakota and Texas) that ban abortion except when a patient’s life is at risk – an exception that is narrower than EMTALA’s emergency medical condition definition. The Supreme Court was asked to decide if there’s a conflict between EMTALA and Idaho’s abortion ban, and if there is, if the federal law overrides the state law. 

The Court didn’t answer those questions and instead dismissed the appeals as “improvidently granted” – meaning a majority of the justices don’t think the matter is ready for review. A majority of the justices also agreed to vacate the Court’s earlier stay of the district court’s preliminary injunction. The practical effect of this is that Idaho cannot enforce its abortion ban when pregnancy termination is needed to prevent serious harm to a woman’s health. While the litigation continues, if a patient presents to the emergency department with a miscarriage, a non-viable fetus, complications of pregnancy loss, severe bleeding, uterine rupture, or other complications that could lead to sepsis, seizure, stroke, or organ failure (including reproductive organs), Idaho can’t prohibit an abortion if the attending physician believes it to be the stabilizing treatment necessary to prevent the patient’s health from deteriorating.  

Implications for reproductive healthcare resources

Continuing uncertainty about what emergency medical care can legally be provided under state law impacts pregnant women and also has implications for those seeking other reproductive health services, such as contraception, screenings for cervical cancer and HPV, or treatment for infertility, endometriosis, and uterine fibroids. There is evidence that civil and criminal penalties from state abortion restrictions may be contributing to the spread of reproductive healthcare deserts – geographic areas that don’t have enough specialized healthcare providers and facilities to meet the demand for maternal and other reproductive healthcare. For example, it has been reported that after the Idaho state abortion ban took effect, 22% of practicing obstetricians left the state including 55% of high-risk obstetricians (from Aug. 2022 - Nov. 2023) and three hospital obstetric programs closed due to inability to recruit obstetricians. The Association of American Medical Colleges reported an 11% drop in OB/GYN residency applications to programs in states with abortion bans and nearly 60% of third- and fourth-year medical students surveyed said they were unlikely to apply to a state with abortion restrictions. If these trends continue, access to general reproductive healthcare for those living in the 14 states that ban abortion could get more challenging. 

What the ruling means for pregnant employees or family member needing emergency care

Employees residing in Arkansas, Mississippi, Oklahoma, South Dakota and Texas may still be denied emergency abortions except when necessary to prevent their death. In Idaho, hospital-based providers opted to evacuate pregnant patients to other states at a higher rate when the abortion ban was in effect, at higher risk to patients and increased cost to payers. If pregnancy complications arise, these employees could be at risk of significant damage to their health, including their fertility. Pregnancy complications are common – for example, it’s reported that 10-20% of all pregnancies end in miscarriages, although the actual number may be higher.  

Pregnant individuals in these states may choose to travel longer distances for urgent care in order to avoid medical care restrictions that could place them at increased risk, although the additional travel itself could contribute to increased risk in urgent or emergency situations. Employees with high-risk pregnancies, a history of miscarriage, or a history of infertility may try to spend portions of their pregnancy out-of-state to ensure access to quality care in case of a complication, but this may not be an option for those with family obligations or economic constraints. 

Challenges for employer health programs

Ongoing changes in state law and policy around abortion, contraception, and assisted reproductive technologies may continue to present challenges for employers and group health plan members. Geographic variance in access to reproductive health services offered through the group health plan requires clear communications and consideration of available options.   

Employers seeking to assist plan members could consider these steps: 

• Review maternal and reproductive medical claims data by geography to understand the level of risk. Overlay worker populations with maps of maternal healthcare deserts and contraceptive deserts and work with medical carriers and data warehouses to review claims data. Determine if there are differences in cost, quality of care or outcomes by geography. For example, are there more high-cost and NICU births in these areas?  

• Consider what support can be offered for reproductive healthcare needs. For employees in states with abortion bans or counties with reproductive care deserts, consider the challenges in accessing care during all stages of the reproductive cycle. Look for services that can be offered to make contraception accessible with minimum barriers, and prenatal care and emergency care (if pregnancy complications arise) more readily accessible. Telehealth for reproductive and maternal care and other tailored point solutions may be impactful. Consider engaging with mobile obstetric units and/or enhancing medical travel benefits and paid time off to address costs associated with travel for plan participants with limited access to reproductive healthcare.  

• Review employee-facing plan communications and anticipate more requests for flexible options. Add a clear description of abortion and other reproductive healthcare coverage and medical travel benefits, if not already included in benefits communications. Identify information resources for plan members residing in states with abortion bans, especially those with no exception for the health of the pregnant person (e.g., ‘In case of an emergency, what do I do?’). Consider if additional communications or support mechanisms (like a concierge service) would help plan participants develop a pregnancy care plan and access appropriate medical care in case of complications or an emergency. 

Conclusion

The Supreme Court decision didn’t resolve the tension between the federal right to emergency medical care and state abortion bans. Legal uncertainty for providers could contribute to a continuing exodus of OB/GYNs in the states with the strictest abortion bans, with negative implications for employees seeking any kind of reproductive healthcare. Employers can anticipate and consider the challenges members may face in finding and navigating quality reproductive healthcare, which may be especially important for pregnant plan members if faced with a complication that jeopardizes their health.