Attorney General Fitch sides with Idaho in abortion lawsuit

Mississippi Attorney General Lynn Fitch filed another brief in support of the argument that states with strict abortion bans should be able to deny emergency medical care to pregnant women if that care involves an abortion. 

The filing in the Idaho case is called an amicus curiae brief, which allows interested parties not directly involved in a court case to submit legal documents voicing their opinion. 

The case began when the Biden administration sued Idaho for barring abortions when a pregnant woman’s health is at risk. 

Fitch added Mississippi to the amicus brief in 2022, immediately after the Dobbs decision overturned the constitutional right to abortion. Nineteen other states now stand with Mississippi, according to the newest court filing.

Fitch’s office declined to comment for this story. 

At the heart of the case, explained Mary Ziegler, one of the country’s preeminent experts on abortion law and a professor at UC Davis School of Law, is a discussion of health versus life – which she says is less of a philosophical distinction and more of a political strategy. 

“There are plenty of things that go wrong in pregnancy that can really affect your health that aren’t going to necessarily imminently kill you. But if you’re coming from a movement perspective, you see all these health justifications basically as loopholes that people are exploiting,” she said. “So, some states responded to that anxiety like Texas by having a health exception but having it be very, very, very narrow, and other states like Mississippi responded by just not having a health exception at all.”

In fact, national health policy organization KFF does not consider Texas’ health exception – to prevent “substantial impairment of major bodily function” – to be an exception at all. Mississippi is one of six ban states which does not have an exception for the health of the mother. 

Arkansas, Idaho, Oklahoma, South Dakota and Texas are the other five, according to KFF. All six have exceptions to protect the life of the mother.

The federal law at odds with these state bans is called EMTALA, or the Emergency Medical Treatment and Active Labor Act, which requires medical providers to stabilize everyone entering the emergency room before discharging or transferring them. The Biden administration argued that treatment should include abortion and should apply to mothers in ban states – if the mother’s pregnancy poses a risk to her health. 

These 20 states, including Mississippi, that have joined the “friend of the court” brief have “a profound interest in preserving the federalist structure, their power to regulate for the welfare of their citizens, and state laws adopted by citizens’ elected representatives to protect unborn children from intentional destruction,” according to the brief. 

While the argument of the amicus brief relies heavily on the principle of state rights, it also presents several anti-abortion defenses, including that doctors should not be allowed to prioritize the health of women over unborn children. 

“That EMTALA imposes obligations on hospitals to pregnant women does not allow hospitals to ignore the health of unborn children,” the brief reads. “Hospitals cannot ‘pick and choose’ between their dual obligations. They must stabilize both women and unborn children.”

But allowing states to treat life and health differently, Ziegler said, doesn’t create a distinction as much as it causes confusion. 

“If you’re going to lose an organ or be permanently disabled – does that fall under life exception or not? And some states say ‘well, yeah, our life exception doesn’t require you to be imminently dying, it just requires that there be a threat to your life, and certain organ damage could qualify.’ But it’s also sort of unclear.” 

After Mississippi’s abortion ban took hold in July 2022, the state’s number of abortions plummeted to nearly zero – despite the fact that Mississippi’s ban has two exceptions: to protect the life of the mother, and cases where the pregnancy was caused by rape and reported to law enforcement. 

Cases like Ashley, the 13-year-old Delta girl TIME magazine wrote about who was raped and forced to carry her baby to term, show that the exceptions can be theoretical.

Only four abortions were performed in Mississippi in 2023, according to data from the Mississippi State Department of Health.

If the Supreme Court votes in favor of the states, Ziegler says it probably wouldn’t change much for a state like Mississippi. If, however, the Supreme Court votes in favor of the Biden administration, it could change the landscape – not of abortion generally, but in those instances where a woman goes to the emergency room for pregnancy complications and doctors are deciding if they can legally treat her. 

“If the Supreme Court ultimately said that EMTALA does cover a universe of physical emergencies that are not imminently life-threatening, and here are some of those examples, it would be very hard for Mississippi prosecutors to go after anyone who performed procedures in those circumstances,” Ziegler said.

A similar case is playing out in Texas.

The Idaho case is currently awaiting an oral arguments hearing in December, after which the 9th U.S. Circuit Court of Appeals will issue an opinion. If appealed, it will return to the Supreme Court.

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