Idaho
Can Idaho ‘Force Someone Onto a Helicopter’ as the Standard of Medical Care for Accessing Health-Stabilizing Abortions? – Ms. Magazine
Under bans with no health exception for the pregnant woman, doctors are forced to decide: “Is she sick enough? Is she bleeding enough? Is she septic enough for me to do this abortion and not risk going to jail and losing my license?”
It is challenging to write about the case of Idaho and Moyle v. U.S., which was argued before the Supreme Court on Wednesday. The challenge is not because I am having trouble understanding the parties’ legal arguments. Rather, the difficulty lies in trying to grasp the abject cruelty of the position Idaho has staked out. In a nutshell, the state maintains it is not obligated under the Emergency Medical Treatment and Labor Act (EMTALA) to provide abortions needed to stabilize an “emergency medical condition” because its Defense of Life Act only permits pregnancy terminations when “necessary to prevent the death of a pregnant woman.”
EMTALA is a 1986 federal statute that was enacted to prevent hospitals which receive Medicare funding from refusing emergency care to low-income patients—a practice commonly referred to as “patient dumping.” EMTALA’s patient-protective mandate is simple and clear.
- It requires hospitals to screen patients seeking emergency care and to provide stabilizing medical care to prevent “material deterioration” of the presenting condition through transfer to another facility or discharge.
- As a federal statute, it preempts (takes precedence over) state laws that conflict with this mandate.
Prior to the Court’s decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade, state abortion laws were constitutionally required to contain both a health and life exception. Accordingly, they were effectively in sync with EMTALA’s health stabilization requirement.
However, in the wake of Dobbs, while most abortion-restrictive states have preserved the health exception, a handful of ban states, including Idaho, no longer permit abortions needed to protect a pregnant person’s health. The U.S. government charges this lack of exception in the law is in direct conflict with EMTALA’s health stabilization mandate—since for “some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy.”
Incorrectly, Idaho Solicitor General Joshua Turner claimed during oral arguments that “nothing in EMTALA requires doctors to … offer medical treatments that violate state law” by insisting they provide abortions needed to preserve pregnant person’s health.
When pressed by Justice Sonia Sotomayor, Turner admitted there was “daylight” between EMTALA and the Defense of Life Act; however, he nonetheless claimed there was no conflict between them, because as long as a physician performed an abortion based on a “good faith” belief it was necessary to save a patient’s life, they were protected from prosecution.
It strains credibility to think we have gotten to the point where the Supreme Court’s conservative supermajority might greenlight Idaho’s blatant disregard for EMTALA’s health stabilization mandate.
In turn, Solicitor General Elizabeth Prelogar eloquently encapsulated what Justice Sotomayor referred to as the “big daylight” between the two laws:
“In Idaho, doctors have to shut their eyes to everything except death—whereas, under EMTALA, you’re supposed to be thinking about things like: Is she about to lose her fertility? Is her uterus going to become incredibly scarred because of the bleeding? Is she about to undergo the possibility of kidney failure?”
This on-the-ground reality was highlighted by the amicus brief submitted by Idaho-based St. Luke’s Medical Center, which provides a firsthand accounting of the Hobson’s choice faced by emergency departments when treating pregnant patients presenting with a medical emergency.
In short, emergency room physicians are faced with the choice to “terminate a pregnancy where necessary to prevent serious jeopardy to a patient’s health, but they may risk criminal prosecution and revocation of their licenses,” or instead wait until the “risks to the patients’ health become life-threatening.”
Dr. Jim Souza, chief physician at St. Luke’s, captured the quandary of trying to determine when intervention no longer carries the risk of up to five years in prison:
“Is she sick enough? Is she bleeding enough? Is she septic enough for me to do this abortion and not risk going to jail and losing my license? When the guessing game gets too uncomfortable, we transfer the patients out at a very high cost to another state where the doctors are allowed to practice medicine.”
These costs include “delaying care while transport is arranged, and distancing patients from their support networks, including the medical providers they know and trust.”
According to Souza, in the three months since the initial injunction on the application of Idaho’s criminal abortion ban to emergency cases was lifted, six patients were airlifted out of state, compared to only one patient in 2023.
Underscoring the grim reality on the ground, some Idaho physicians are now advising pregnant patients or those trying to become pregnant that it might be advisable to “purchase memberships with companies like Life Flight Network or Air St. Luke’s … to avoid potentially significant costs if they need air transport in an emergency.”
We have been repeatedly hit by the harsh post-Dobbs reality that, at every turn, anti-abortion activists are ready to disregard the lives and well-being of pregnant persons in favor of the unborn. Nonetheless, it strains credibility to think we have gotten to the point where the Supreme Court’s conservative supermajority might greenlight Idaho’s blatant disregard for EMTALA’s health stabilization mandate.
And while it certainly is possible that the conservative justices on the Court are truly invested in resolving the preemption question, there is no doubt but that something else is at stake here—namely, fetal personhood.
Surfacing this concern, Justice Samuel Alito, when questioning Prelogar, offered almost as an aside, “We’ve now heard … an hour and a half of argument on this case, and one very important phrase in EMTALA has hardly been mentioned. Maybe it hasn’t been mentioned at all. That is EMTALA’s reference to the woman’s ‘unborn child.’”
He immediately followed up with a pointed question, asking Prelogar, “Isn’t that an odd phrase to put in a statute that authorizes abortion? Have you ever seen an abortion statute that uses the phrase ‘unborn child’? … Doesn’t that tell us something?”
In fact, the phrase had come up several times during Justice Neil Gorsuch’s questioning of Turner, with regard to the intent behind the 1989 amendment to EMTALA requiring stabilizing healthcare to an unborn child in distress. Both concurred that the “something” was that EMTALA regards the fetus as a co-equal second patient.
As Turner opined, “It would be a strange thing for Congress to have regard for the unborn child and yet also be mandating termination of unborn children.”
Prelogar quickly disposed of the view that EMTALA regards the fetus as a rights-holding person. As she explained when grilled by Alito, Congress amended EMTALA in 1989 to ensure that when a pregnant person seeks emergency care because the fetus is in peril, they will not be turned away, as was often the case, because their life or health was not risk.
However, Alito did not buy this. In line with Gorsuch—suggesting where the conservative majority may land—he asked, “Doesn’t what I read to you [namely, EMTALA’s unborn child provisions] show that the statute imposes on a hospital a duty to the woman certainly, and also a duty to the child?”
Somewhat obliquely returning to the preemption question, he indicated that EMTALA “doesn’t tell the hospital how it is to adjudicate conflicts between these interests and it leaves that to the states.”
Of course, leaving it to the states in this way would give Idaho and other states without a health exception free rein to prioritize the rights of the fetus over those of a pregnant patient who is facing, for example, the potential loss of fertility, or permanent organ damage or the onset of seizures, or hypoxic brain injury.
If Idaho and other abortion ban states are allowed to continue to play with women’s lives, unchecked by the Court, expect (as Prelogar warned) “tragedy upon tragedy.”
Up next:
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
A key selling point of Idaho’s new private education tax credit was that it would open doors for students who couldn’t otherwise attend private school. But it’s uncertain whether data that would test this claim will be made public after the first round of credits goes out next year.
The Parental Choice Tax Credit’s authors wrote data reporting requirements that are leaner than those tied to similar programs in other states. For instance, the new law doesn’t require the Idaho State Tax Commission — the agency responsible for administrating the refundable tax credit — to report how many recipients were already enrolled in private school.
This data would help answer one of the most hotly contested questions surrounding the program: whether the nearly $50 million in state subsidies would benefit families that need help attending private school, as supporters argued, or whether it would be a tax break for families that could already afford private school, as opponents claimed.
While all nonpublic school students can apply for the credit, priority will be given to applicants that earn 300% or below the federal poverty level — about $96,000 in household income for a family of four.
In Iowa, Oklahoma, Florida, Arkansas, North Carolina and Arizona — states with “universal” private school choice programs, like Idaho’s, that are open to all nonpublic students — most subsidies have gone to students that didn’t previously attend a public school.
“In other states they have found that the more transparency there is, the more data is released, the more damning it is for the voucher programs,” said House Minority Leader Ilana Rubel, D-Boise, who’s pushing for a repeal of Idaho’s credit. “The more it reveals that, in fact, this is all a means of lining the pockets of the very wealthy, who already have their kids in private schools and who were perfectly able to pay for it already.”
Bill sponsor doesn’t oppose additional data release
House Bill 93, the tax credit legislation, directs the Tax Commission to compile a report with eight data points on the program’s rollout. The report, which is due to the Legislature before the 2027 session, must include:
- The number of tax credits provided.
- The number of parents who applied.
- The average credit in dollars.
- The number of credits distributed to households below 300% of the federal poverty level.
- The number of parents who requested an advance payment rather than a tax credit.
- The “geographic area” of parents applying.
- The number of eligible students on a waiting list to receive a credit.
- The list of the categories of qualifying expenses that were claimed for reimbursement.
The bill forbids the Tax Commission from including “any personally identifying information of eligible students, their parents, or their households.” The Idaho Public Records Act also protects personal tax information collected by the commission.
But neither HB 93 nor public records law restrict the Tax Commission from releasing additional anonymous data — on income, residency or previous school enrollment.
Rep. Wendy Horman, a co-sponsor of HB 93, said the reporting requirements were designed to inform a “data-driven approach” to potentially growing the program, if demand justifies it. And they’re meant to ensure that applicants earning 300% or below the federal poverty level receive a credit. These students are the “focus” of the program, said Horman, R-Idaho Falls.
Horman said she “doesn’t have any problem” with the Tax Commission releasing data on how many tax credit recipients switched from public school to a private or home-school. But she noted that some families who attend online public schools, such as the Idaho Home Learning Academy, consider themselves home-schoolers, even though they attend public schools.
“You would just need to be cautious about assumptions you’re making,” she said. “If they made the switch, I would consider that a different class of public school students, if you will, than traditional brick-and-mortar students.”
” data-medium-file=”https://www.idahoednews.org/wp-content/uploads/2025/11/Horman-at-Capital-620×413.jpg” data-large-file=”https://www.idahoednews.org/wp-content/uploads/2025/11/Horman-at-Capital-1180×787.jpg” class=”size-medium wp-image-110624″ alt=”” width=”620″ height=”413″ srcset=”https://www.idahoednews.org/wp-content/uploads/2025/11/Horman-at-Capital-620×412.jpg 620w, https://www.idahoednews.org/wp-content/uploads/2025/11/Horman-at-Capital-1180×786.jpg 1180w, https://www.idahoednews.org/wp-content/uploads/2025/11/Horman-at-Capital-200×133.jpg 200w, https://www.idahoednews.org/wp-content/uploads/2025/11/Horman-at-Capital-1536×1024.jpg 1536w, https://www.idahoednews.org/wp-content/uploads/2025/11/Horman-at-Capital.jpg 1920w” sizes=”auto, (max-width: 620px) 100vw, 620px”/><figcaption id=)
The Idaho Legislature’s Joint Finance-Appropriations Committee co-chairwoman Rep. Wendy Horman, R-Idaho Falls, listens to proceedings during a January 2023 hearing. (Otto Kitsinger for Idaho Capital Sun)
Tax Commission mum on data
Whether this data will be publicized is now up to the Tax Commission. The commission will know how many recipients were existing non-public school students, and how many switched from a public school to a private setting with the tax credit’s help.
Idaho Education News obtained, through a public records request, a draft of the tax credit application that’s scheduled to go live Jan. 15. While not finalized, the application includes 19 sections that ask a range of questions, from basic biographical information to details about the private schools where tuition would be reimbursed.
The questionnaire also asks whether the applicant previously attended a public school and requests the date on which the applicant started attending a nonpublic school.
Click here to read the draft.
Last week, a spokeswoman said the commission is “committed” to publicizing information beyond what HB 93 requires. However, she declined to answer questions about specific data.
“The Tax Commission will provide the report as required by law, and we’re committed to providing other publicly available information as it becomes available as long as it doesn’t expose any personally identifiable taxpayer information,” Renee Eymann, senior public information officer for the Tax Commission, said by email.
For now, the commission is focused on “ensuring the application process goes smoothly” before it opens next month, Eymann added.
” data-medium-file=”https://www.idahoednews.org/wp-content/uploads/2024/01/IMG_1504-620×535.jpg” data-large-file=”https://www.idahoednews.org/wp-content/uploads/2024/01/IMG_1504-1180×1019.jpg” class=”size-medium wp-image-87690″ alt=”” width=”620″ height=”535″ srcset=”https://www.idahoednews.org/wp-content/uploads/2024/01/IMG_1504-620×535.jpg 620w, https://www.idahoednews.org/wp-content/uploads/2024/01/IMG_1504-1180×1019.jpg 1180w, https://www.idahoednews.org/wp-content/uploads/2024/01/IMG_1504-200×173.jpg 200w, https://www.idahoednews.org/wp-content/uploads/2024/01/IMG_1504-1536×1326.jpg 1536w, https://www.idahoednews.org/wp-content/uploads/2024/01/IMG_1504.jpg 1920w” sizes=”auto, (max-width: 620px) 100vw, 620px”/><figcaption id=)
Idaho children and parents hold signs supporting a 2024 bill to create a $5,000 tax credit offsetting private education, a precursor to House Bill 93, which passed in 2025. (Darren Svan/Idaho EdNews)
Arizona releases quarterly reports
The Arizona Department of Education publishes data on its education savings account (ESA) program in quarterly reports. The reports include a percentage of new ESA enrollees who haven’t attended a public school.
When the $985 million Arizona program became universal two years ago, 79% of new recipients hadn’t attended a public school. Today, 43% of new ESA enrollees are existing private- or home-school students.
Previous school enrollment data is necessary to test one other claim from advocates for private school choice: that subsidizing privately educated students is cheaper than supporting public school students. Spending between $5,000 and $7,500 per-pupil through Idaho’s tax credit program is lower than the $8,830 that the state spends per public school student.
But savings will only come from tax credit recipients who switched from public school to a private setting. Students who were already educated privately will be a new cost to the state.
Arizona also releases data on the ZIP codes of families receiving an ESA. This led to a ProPublica analysis that found wealthier ZIP codes have higher rates of students receiving ESAs than poorer ones.
While HB 93 requires the Tax Commission’s report to include “geographic” data, it doesn’t say how specific the data should be by reporting a state, county, city or ZIP code. Horman said it’s open to the Tax Commission’s interpretation.
The commission, meanwhile, was silent on its interpretation.
Evidence of learning not required up front in application
The Tax Commission did confirm one thing in response to questions from EdNews last week: Parental Choice Tax Credit applicants won’t have to include a portfolio of learning materials.
HB 93 requires that tax credit recipients either attend an accredited school or maintain a portfolio with evidence that the student is learning English, math, science and social studies. But the bill wasn’t clear on when the portfolio would need to be available.
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Senate Majority Leader Lori Den Hartog, R-Meridian
During an October town hall, Sen. Lori Den Hartog, a co-sponsor of HB 93, said the Tax Commission was planning to ask for the portfolio through the application process, even though the bill’s authors intended the portfolio to be required only in the event that a recipient is audited.
“The Tax Commission has been telling families that they’re going to need to submit these things up front,” Den Hartog said during the Oct. 22 town hall in Garden City. “We had felt a little differently and didn’t think the law was crafted that way.”
This doesn’t appear to be the case anymore. The draft application doesn’t include a question about the portfolio, and Eymann said Tuesday that the portfolio or evidence of school accreditation “must be made available upon request.” She didn’t address a question about what has changed since October.
GROTON, Connecticut — Last week, the future USS Idaho nuclear submarine was delivered to the U.S. Navy at its facility in Groton, Connecticut.
The nuclear-powered submarine is set to be commissioned in spring 2026, sailing the world for the next 30 years.
Before it commissions this upcoming spring, the USS IDAHO crew will undergo training and mission exercises.
Virginia-class submarine program manager Captain Mike Hollenbach comments on how driven Idaho is in the military space.
“Idaho represents the hard work and tenacity of shipbuilders, industry partners and Navy personnel to deliver the best undersea warfighting platform to the fleet.”
The future Idaho submarine will be the fifth Navy ship to be named for the state of Idaho. The first one, a wooden-hulled storeship, was commissioned in 1866.
PAUL, Idaho (KUTV) — Two bus drivers and four students were transported to hospitals in various conditions after a head-on collision between two school buses in southern Idaho.
Officials with the Idaho State Police said they responded to a crash near Paul in Minidoka County early Monday morning, extricating a driver from a bus.
Both drivers were airlifted to a hospital, and four injured students were transported by ambulance or car to local hospitals for treatment. Police believe the students’ injuries are not life-threatening.
MORE | School Bus Crashes:
Two bus drivers and four students were transported to hospitals in various conditions after a head-on collision between two school buses in southern Idaho. (Credit: Idaho State Police)
Police said the crash occurred just before 6:15 a.m. on State Highway 25. There were a total of 17 students on the two buses, all of whom have been reunited with their families.
Officials did not release information on where the students attend school.
The crash comes just days after two school buses were hit by a pickup truck in central Utah, sending 18 people to the hospital and resulting in the death of the truck driver.
The majority of the Wasatch Academy students in the Utah crash have since returned from the hospital, according to school officials.
Utah officials believe the three-vehicle crash may have been caused by fatigued driving. The cause of the Idaho crash is still under investigation.
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