ABORTION RIGHTS
Does EMTALA Preempt State Laws That Protect Human Life and Prohibit Abortions, Like Idaho’s Defense of Life Act?
December 14, 2023
Moyle v. United States and Idaho v. United States
Case at a Glance
Idaho law makes it a crime to perform, or attempt to perform, an abortion, with the lone exception being when the abortion is needed to prevent the death of the pregnant woman. The federal Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals to provide “necessary stabilizing treatment” when the health of the mother is in danger. The Supreme Court is being asked to decide if EMTALA preempts Idaho’s law.
Moyle v. United States and Idaho v. United States Docket Nos. 23-726 and 23-727
Argument Date: April 24, 2024 From: The Ninth Circuit
by David B. Weisenfeld
Princeton, NJ
Introduction
This highly charged case marks the first time the Supreme Court is being asked to weigh in on a state law criminalizing abortions since its landmark ruling in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), to overturn Roe v. Wade, 410 U.S. 113 (1973). How the justices resolve this dispute will have significant ramifications not only for Idaho’s Defense of Life Act, but potentially for pro-life laws in more than 20 other states.
Issue
Does the Emergency Medical Treatment and Labor Act (EMTALA) directly conflict with Idaho’s abortion ban to the point that it should block the state’s measure from taking effect?
Facts
Idaho’s Defense of Life Act is among the strictest abortion bans in the nation. The law makes it a felony for every person who performs, attempts to perform, or assists an abortion with a penalty of two to five years imprisonment. In addition, it subjects any medical provider violating the Defense of Life Act to a minimum six-month suspension of their license for a first offense and permanent suspension for a subsequent offense. The lone exceptions are for abortions “necessary to prevent the death of the pregnant woman” or if the pregnancy resulted from rape or incest that was reported to law enforcement.
Idaho enacted the law in 2020 with a trigger provision enabling it to become effective 30 days after any Supreme Court decision restoring to the states their authority to prohibit abortion. In light of the Dobbs ruling, the Defense of Life Act was set to take effect in August 2022.
But before that could happen, the Biden administration sued Idaho, claiming that the law directly conflicts with EMTALA. This 1986 federal law requires emergency room physicians at hospitals receiving Medicare funds to offer “stabilizing treatment” to patients who arrive at the hospital with emergency medical conditions.
Citing EMTALA, the federal district court judge in Boise issued a preliminary injunction barring enforcement of Idaho’s abortion ban as it applies to emergency care at hospitals in situations where the patient’s health is in jeopardy.
U.S. District Judge B. Lynn Winmill wrote, “Rather than providing the stabilizing treatment that EMTALA calls for,” Idaho subjects women in medical crisis to periods of “serious physical and emotional trauma” as they wait to get “nearer and nearer to death.”
On appeal, a three-judge Ninth Circuit panel of Trump appointees blocked the injunction. The result was shortlived, though, as the en banc appellate court ruled last November that the district court’s injunction should remain in effect and set an oral argument date for early this year.
However, the Supreme Court jumped into the fray and granted Idaho’s application to stay the injunction on January 5 and agreed to hear the case. The net result of staying the injunction means Idaho’s abortion ban is in effect until the justices issue a ruling.
Case Analysis
More than a dozen states had trigger bans set to take effect if the Supreme Court overruled Roe v. Wade. With many of those measures being strict abortion prohibitions, it seemed inevitable that a dispute involving one of them would surface at the nation’s highest court following Dobbs.
This closely watched case ultimately centers around how one interprets EMTALA. Congress enacted the federal statute to ensure public access to emergency medical services regardless of a patient’s ability to pay.
The federal law requires Medicare-participating hospitals (including critical access hospitals) to perform a medical examination on all persons, including unborn children, who present for care at an emergency department in order to determine whether an emergency medical condition exists.
But Idaho notes in its brief that nowhere does EMTALA mention abortion. Thus, Idaho argues, there is no conflict between federal law and the state’s standard of care because nothing in EMTALA requires abortions that state law does not authorize.
Meanwhile, Idaho law is clear that the “life of each human begins at fertilization.” The manner in which medical services are provided, Idaho asserts, falls squarely within the states’ traditional police powers. In contrast, the state claims that the federal government’s position effectively turns EMTALA’s protection for the uninsured into a federal super-statute on the issue of abortion that “strips Idaho of its sovereign interest in protecting innocent human life.”
If a physician’s judgment is a federal trump card in the emergency room, Idaho argues, it would allow a hospital to administer an experimental drug that is neither FDA approved nor covered by Medicare. And that’s not all. Idaho claims that such a result would also authorize emergency room physicians to treat mental health conditions with marijuana, surgical interventions, or euthanasia medications, despite state law to the contrary.
Finally, EMTALA expressly indicates that it does not preempt state or local requirements except for those directly conflicting with federal law. And since EMTALA does not reference abortion, Idaho claims, no conflict exists between federal and state law.
To the federal government and the amici supporting its position, however, the conflict in this case could not be clearer. EMTALA obligates doctors to provide “necessary stabilizing treatment” when a woman is experiencing an emergency medical condition.
In some cases, the federal government argues, the medically necessary care is termination of a pregnancy. For instance, pregnant women can experience a number of emergency medical conditions where death may not be imminent but the risk of lasting harm to the pregnant woman’s health is nonetheless quite significant.
These emergency conditions may include kidney failure, infection, uncontrollable bleeding, and others, and EMTALA requires physicians to treat patients in a way that will prevent further deterioration. Idaho law would not allow for an abortion in such a case.
Where federal law “requires the provision of care and state law criminalizes that very care, it is impossible to comply with both laws,” the federal government notes. State law cannot limit care that EMTALA otherwise requires. What’s more, the federal government asserts, there is nothing to show that Congress intended to exclude abortion care from EMTALA’s stabilization treatment mandate.
The federal government adds that Idaho’s reliance on Dobbs is unavailing. Nothing in Dobbs, the respondent claims, suggests that the states’ authority to regulate with respect to abortion is uniquely exempt from being preempted by an otherwise valid federal law such as EMTALA.
Significance
The Supreme Court has unquestionably saved the biggest stakes for last this term with the Idaho case being the next-to-last oral argument on its schedule, followed only by the blockbuster presidential immunity claims in Trump v. United States one day later.
Moyle v. United States presents the justices with their first post-Dobbs opportunity to weigh in on a state law criminalizing abortions, and it would be hard to overstate the potential implications.
Idaho and its amici argue that the federal government’s position would “obliterate” pro-life laws in more than 20 other states. They view it as an attempt by the Biden administration to make an end run around Dobbs and the Supreme Court’s return of the authority to regulate abortion to the states.
Even if the justices side with the Biden administration and reinstate the lower court’s injunction, though, it would not lead to “abortion on demand” in states that regulate the procedure. Instead, such a result likely would enable emergency room doctors to make judgments in certain situations that an abortion might be needed to stabilize a pregnant woman’s health, whether or not the condition is life threatening.
Conversely, a ruling that leaves Idaho’s abortion ban in place could embolden other states to enact equally strict measures. At minimum, a brief supporting the federal government claims, it will have dire consequences for medical care in Idaho.
It is not always easy to tell where the line falls for a pregnant woman’s life to be imperiled. Will a ruling against the federal government deter doctors and nurses from practicing in Idaho knowing the criminal penalties that the state law has in place?
Idaho already has a shortage of emergency room physicians. Some obstetrician-gynecologists (OB-GYNs) may reject offers to work in Idaho and other states with restrictive abortion laws because of concerns over possible criminal liability for exercising their medical judgment.
EMTALA addresses the need to provide stabilizing medical treatment, but will the federal law’s silence regarding abortion prove decisive? No matter which side prevails, the reverberations could make the outcome a big issue in the 2024 election.
Attorneys for the Parties
- For Petitioner Idaho (Joshua N. Turner, Acting Idaho Solicitor General, 208.332.3548)
- For Petitioner Mike Moyle (Taylor A.R. Meehan, 703.243.9423)
- For Respondent United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)
In Support of Petitioners Idaho and Mike Moyle
- Advancing American Freedom, Inc. (J. Marc Wheat, 202.780.4848)
- American Association of Pro-Life Obstetricians and Gynecologists (Judd E. Stone II, 737.465.7248)
- American Center for Law and Justice (Jay Alan Sekulow, 202.546.8890)
- America’s Future, et al. (William J. Olson, 703.356.5070)
- Center for Constitutional Jurisprudence (Anthony T. Caso, 916.601.1916)
- Charlotte Lozier Institute (Gene C. Schaerr, 202.787.1060)
- Christian Medical and Dental Associations (Lori H. Windham, 202.955.0095)
- Foundation for Moral Law, et al. (John A. Eidsmoe, 334.262.1245)
- Indiana and 21 Other States (James A. Barta, Indiana Solicitor General, 317.232.0709)
- Institute for Faith and Family (Deborah J. Dewart, 910.326.4554)
- Manhattan Institute (Ilya Shapiro, 212.599.7000)
- 121 Members of Congress (Steven H. Aden, 202.741.4917)
- Minnesota Family Council, et al. (Nicholas J. Nelson, 612.429.8100)
- National Right to Life Committee (James Bopp Jr., 812.232.2434)
- Prolife Center at the University of St. Thomas (Christopher E. Mills, 843.606.0640)
- Stanton International (William Wagner, 517.643.1765)
- United States Conference of Catholic Bishops, et al. (Thomas Brejcha, 312.782.1680)
- Women Hurt by Abortion (Mary J. Browning, 210.614.7157)
In Support of Respondent United States
- American Hospital Association, et al. (Charlotte H. Taylor, 202.879.3872)
- Dr. Caitlin Bernard, et al. (Rupali Sharma, 908.930.6645)
- Public Citizen (Nandan M. Joshi, 202.588.1000)
- St. Luke’s Health System, Ltd. (Lindsay Harrison, 202.639.6000)
- U.S. Women’s Chamber of Commerce (M. Patrick Yingling, 312.207.2834)