EMTALA Doesn’t Preempt Idaho Law Criminalizing Abortions, Ninth Circuit Says
- October 06, 2023
The Emergency Medical Treatment and Labor Act (EMTALA) does not preempt an Idaho law that criminalizes most abortions, a three-judge panel of the Ninth Circuit held September 28 in granting a stay of a district court decision enjoining enforcement of the law.
The appeals court rejected the federal government’s argument that it was impossible to comply with EMTALA and Idaho's near-total abortion ban, which makes it a crime for a health care provider to perform an abortion with a few narrow exceptions.
Even if EMTALA required abortions in limited circumstances, those abortions would not be punishable under the Idaho law given its exception for when a physician determines that an abortion is necessary to save the life of the pregnant woman, the appeals court said. The law’s abortion restrictions also were not an obstacle to EMTALA’s underlying purpose to ensure Medicare-participating hospitals provide indigent patients with emergency medical care, the panel noted.
The Idaho law, which was enacted in 2020 and triggered to go into effect after the Supreme Court’s decision overturning Roe v. Wade, makes it a crime for a health care provider to perform an abortion unless “[t]he physician determine[s], in his good faith medical judgment . . . that the abortion was necessary to prevent the death of the pregnant woman.”
The federal government challenged the law, arguing it was preempted by EMTALA. The district court granted a preliminary injunction in August 2022 and denied reconsideration in May 2023.
On appeal, the Ninth Circuit panel agreed to stay the lower court's injunction, finding a strong likelihood that the abortion law did not implicate EMTALA. The federal anti-dumping law indicates that it does not “preempt any State or local law requirement, except to the extent that the requirement directly conflicts” with the statute.
First, the appeals court found it was not impossible to comply with EMTALA and the Idaho statute as the government contended. EMTALA provides certain procedures that hospitals must follow but does not impose any standards of care, the appeals court said. “EMTALA does not require the State to allow every form of treatment that could conceivably stabilize a medical condition,” the appeals court added.
“To read EMTALA to require a specific method of treatment, such as abortion, pushes the statute far beyond its original purpose, and therefore is not a ground to disrupt Idaho’s historic police powers,” the appeals court said.
And even if EMTALA required abortions as “stabilizing treatment” in limited circumstances, the Idaho law's exception for preserving the life of the mother avoided a direct conflict with the federal statute.
The district court found the exception was ambiguous and therefore prevented providers from performing abortions even where necessary to save the life of the mother. But the appeals court noted that a subsequent Idaho Supreme Court ruling and further legislative amendments made clear that the exception provided a “broad, subjective standard” requiring only a provider’s “good faith medical judgment” that an abortion was necessary to prevent the death of the pregnant woman.
The appeals court also found other factors weighed in favor of granting the stay, including that the state met its burden of showing irreparable harm in being unable to effectuate its “strong interest in protecting unborn life” and in “preventing Idaho from enforcing its duly enacted laws and general police power” without “unwarranted federal interference.”
The case is one of two challenges involving EMTALA that were brought in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2243 (2022). While the U.S. District Court for the District of Idaho found EMTALA preempted Idaho’s abortion restrictions and enjoined the statute's enforcement, the U.S. District Court in the Northern District of Texas came to the opposite conclusion, finding no direct conflict between the federal statute and Texas’ abortion law. State of Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex. Aug. 23, 2022). The government has appealed the Texas court decision to the Fifth Circuit.
The government also filed an emergency motion on September 30 asking the full Ninth Circuit to review the panel’s decision granting the stay of the district court’s injunction.
United States v. Idaho, Nos. 23-35440 and 23-35450 (9th Cir. Sept. 28, 2023).