Published January 25, 2024
Abortion is before the Supreme Court once again. This month, the Court granted certiorari in consolidated cases Moyle v. United States and Idaho v. United States.
In these two cases, Idaho and the Idaho legislature asked the Supreme Court to stay a federal district court opinion preliminarily enjoining Idaho’s abortion law, which bans abortions except when “necessary to prevent the death of the pregnant woman” or during the first trimester when a pregnancy is a result of rape or incest. The district court held that the pro-life law was preempted by the federal Emergency Medical Treatment and Labor Act (EMTALA).
Biden Administration’s Response to Dobbs and EMTALA
As the Centers for Medicare & Medicaid Services (CMS) within the U.S. Department of Health and Human Services (HHS) explains, EMTALA was enacted by Congress in 1986 “to ensure public access to emergency services regardless of ability to pay.” EMTALA requires hospitals that receive Medicare funding to medically screen, stabilize, and appropriately transfer an individual with an “emergency medical condition.” An “emergency medical condition” is defined as:
a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.
EMTALA does not preempt state law unless it “directly conflicts.” Notably, EMTALA contains a duty to both a pregnant woman and her unborn child, mentioning the unborn child four times and abortion zero.
Less than three weeks after the Dobbs decision and in response to Biden’s executive order on reproductive health, CMS issued EMTALA guidance on July 11 that purportedly did “not contain new policy” but claimed that EMTALA could require abortion and could preempt state abortion laws. This would effectively create a new federal right to abortion in emergency rooms. The same day, HHS Secretary Xavier Becerra sent a corresponding letter to “health care providers” reiterating these purported obligations under EMTALA and threatening enforcement for noncompliance.
Becerra’s letter explicitly stated that stabilizing treatments could include abortion, explaining that if “abortion is the stabilizing treatment necessary to resolve [an emergency medical] condition, the physician must provide that treatment.” Further, if a state law prohibits abortion without exceptions “for the life and health of the pregnant person” or “draws the exception more narrowly than EMTALA’s emergency medical condition definition,” the state law is “preempted.”
Significantly, all state abortion laws to date, including Idaho’s, have exceptions for the life of the mother. “Health,” on the other hand, is a squishy term. It was interpreted by the Supreme Court in Doe v. Bolton (the companion case to Roe v. Wade) as including all factors “physical, emotional, psychological, familial, and the woman’s age”—factors that extend beyond EMTALA’s “emergency medical conditions.” In practice, abortion exceptions for health turn into abortion on demand. Most pro-life laws (including Idaho’s) do not contain an abortion exception for health. And more importantly, EMTALA deals with “emergency medical conditions,” not general health concerns.
Biden DOJ Sues Idaho, and Texas Sues HHS
On August 2, 2022, the Department of Justice sued the state of Idaho, arguing that its abortion law violated the Supremacy Clause because EMTALA allegedly requires the provision of abortion under the theory set forth in CMS’s EMTALA guidance. DOJ asked that the federal district court rule that the Idaho law “is preempted and therefore invalid to the extent that it conflicts with EMTALA.”
Idaho’s Defense of Life Act (Idaho Code section 18-622) makes it a crime to perform most abortions, defined as “the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.” A physician, however, is permitted under the law to perform an abortion when “necessary to prevent the death of the pregnant woman,” based on “good faith medical judgment and based on the facts known to the physician at the time,” and in the first trimester when the pregnancy is a result of rape or incest.
The law was passed in 2020 with an effective date 30 days after a Supreme Court decision “that restores to the states their authority to prohibit abortion.” Since the Court issued its judgment in Dobbs on July 26, 2022, Idaho’s law was set to go into effect on August 25.
The lawsuit is a political effort by the Biden administration to sidestep the Supreme Court’s direction in Dobbs to return the issue of abortion “to the people and their elected representatives.” But abortion access is not why EMTALA was passed. As my Ethics and Public Policy Center colleague Ed Whelan pointed out for National Review:
rather than purporting to displace state law, EMTALA imposes requirements on hospitals that choose to take part in Medicare. It’s a funding restriction. It would seem, therefore, that the Biden administration’s only proper legal recourse is to take enforcement action against any Medicare-participating hospital in Idaho that actually fails to comply with EMTALA or to undertake to terminate its Medicare agreements with Idaho hospitals.
Meanwhile, Texas and two associations of pro-life medical professionals sued HHS, claiming CMS’s EMTALA guidance requires abortions prohibited by Texas law. Texas’ Human Life Protect Act prohibits any person from performing an abortion except when a licensed physician makes a “reasonable medical judgment” that a “life-threatening physical condition . . . places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”
On August 23, 2022, the Texas district court held the EMTALA guidance “goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict.” The court also held that HHS violated the Administrative Procedure Act because the guidance imposed a new substantive legal standard and did not go through notice-and-comment rulemaking. As such, the court preliminarily enjoined HHS from enforcing the EMTALA guidance (and Becerra’s letter) against Texas’s abortion laws, within Texas, and against any member of the pro-life associations.
One day later—the day before Idaho’s abortion law was set to go into effect—the Idaho district court granted a preliminary injunction, finding that DOJ was “likely to succeed on the merits” because “state law must yield to federal law when it’s impossible to comply with both,” and Idaho’s law “conflicts with” EMTALA. As such, the court held Idaho’s law is preempted to the extent the law’s life-of-the-mother exception is narrower than EMTALA’s “emergency medical condition.”
DOJ and Idaho, along with intervenor Idaho legislature, appealed to the Fifth and Ninth Circuits, respectively.
In September 2023, a Ninth Circuit panel (Bade, Lee, VanDyke) stayed the Idaho district court’s injunction pending appeal, finding Idaho was likely to prevail on the merits because “EMTALA does not require abortions, and even if it did in some circumstances, that requirement would not directly conflict with section 622.”
At the request of the Biden administration, the en banc Ninth Circuit vacated the panel’s opinion in an unreasoned order and granted rehearing.
Idaho Cases Go to the Supreme Court
While the applications were pending, the Fifth Circuit (Southwick, Engelhardt, Wilson) affirmed the injunction in the Texas case on January 2, 2024, holding “EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt Texas law.”
On January 5, the Supreme Court stayed the preliminary injunction against Idaho, allowing its abortion law to go into effect. In an unusual move, the Court then treated the applications as petitions for a writ of certiorari before judgment and granted the petitions to address “whether EMTALA preempts state laws that protect human life and prohibit abortions, like Idaho’s Defense of Life Act.”
President Biden criticized the Supreme Court’s order, claiming it “denies women critical emergency abortion care required by federal law” and calling on Congress to “immediately restore the protections of Roe v. Wade.” On January 22, the 51st anniversary of Roe v. Wade, the White House issued a Fact Sheet announcing new actions (and summarizing prior actions) by the Biden administration to protect access to abortion. Regarding EMTALA, the White House explained that the administration “has long taken the position” (by which it appears to mean a year and a half) that “emergency care” required under EMTALA “can, in some circumstances, include abortion,” and it reiterated that DOJ “is defending that interpretation of the law before the Supreme Court.” CMS announced “a serious of actions” to educate the public and help hospitals meet their obligations under EMTALA, including for patients who experience “pregnancy-related emergencies.”
Consolidated oral argument in the cases is scheduled for the April 2024 argument session, and a final decision is expected in June.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.