Trump Judge Questions If Airlifts Under Idaho Abortion Ban Are Really About Mother Who ‘Wants To Kill The Baby’

When an appellate court on Tuesday got its hearing of the major emergency room abortion case the Supreme Court sent back down last term, the liberals painted a grim picture of women’s suffering under an anti-abortion regime that the conservatives quickly sought to sanitize. 

“Your argument is: If the mother wants to kill the baby even though it’s not necessary to prevent [her death] — then they have to be airlifted,” Judge Lawrence VanDyke, a Trump appointee and former solicitor general of Nevada and Montana, asked the lawyer for an Idaho hospital system after she explained that patients had been airlifted out of the state because they might need what Idaho classifies as a criminal abortion. 

The case, now before the 9th Circuit Court of Appeals, centers on whether federal emergency room mandates — enshrined in EMTALA, the Emergency Medical Treatment and Labor Act — preempt state abortion bans when they conflict. EMTALA requires that emergency rooms stabilize patients in crisis. Idaho maintains that they don’t overlap, that the ban’s exception for preventing the woman’s death covers all emergencies. The Biden administration and the hospital system counter that pregnant women can experience a range of medical emergencies that put them on the path to permanent injury or illness, if not death. 

Judge Milan Smith, a George W. Bush appointee, underscored the extremity of what the Idaho abortion ban demands.

“A woman comes into the emergency ward and in the physician’s good faith opinion, the woman, unless she has an abortion, is going to lose a leg,” he said. 

“So here you have a physician who is gonna lose his or her license if they treat the person, and the woman might lose her leg otherwise?” he asked incredulously. “You don’t think that’s in conflict with the purposes of EMTALA and a natural reading of it?”

Smith, along with the liberals on the court, pushed back on the anti-abortion fantasy that state laws can ban virtually all abortions without having a devastating effect on women’s health. (Idaho’s legislature allowed the committee tasked with tracking and investigating pregnancy-related deaths to shutter in 2023, a year after its ban took effect.) 

Judge Salvador Mendoza brought up Sandpoint Idaho, where the OB-GYN ward shut down after Idaho’s trigger ban took effect. 

“There are no services available for women who have a situation where they’re bleeding out,” he said.

“What if it’s not catastrophic but it’s resulting in serious injury to the woman — what do we do in that circumstance?” he asked the lawyer for Idaho’s legislators. “Does she have to then rely on a hopefully working vehicle to drive across the border to Spokane, Washington to get services there?”

VanDyke and the other Trump appointees painted the case as federal government overreach by the Biden administration, which is seeking to enforce the commonly held interpretation of EMTALA. “How is this not regulation of the practice of medicine?” Judge Daniel Bress asked. VanDyke mused about whether “ethics” have a place in medicine, and why it shouldn’t be left to the states to decide what they are.

Judge Consuelo Callahan, a George W. Bush appointee, cut through the attempts to accurately depict an anti-abortion regime to ask: “Is this an exercise in futility?” 

She pointed out that a new administration is coming in, and asked whether the judges should just send the case back down to the district court. 

The Supreme Court’s delay — incurred by preemptively taking the case from the 9th Circuit, getting fully briefed and hearing arguments, then deciding that it intervened too early and sending it right back — has made it near-certain that the case will still be percolating when Joe Biden’s Department of Justice becomes Donald Trump’s. It’s very unlikely that Trump’s DOJ will share the Biden one’s interest in preserving abortion rights in emergency rooms, likely ending the case at least in its current posture. 

The Supreme Court majority Trump crafted ended abortion rights across the United States. Now, indirectly, it’ll likely have ended that care for women in red state emergency rooms too.