Supreme Court Debates EMTALA’s Reach in Abortion Law Challenge
- April 26, 2024
The U.S. Supreme Court heard oral arguments April 23 over whether in the context of medical emergencies the Emergency Medical Treatment and Labor Act (EMTALA) preempts an Idaho law that criminalizes nearly all abortions.
The Idaho law, which was enacted in 2020 and went into effect after the Supreme Court overturned Roe v. Wade, makes it a crime 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.” Violating the statute could result in criminal penalties, including up to five years in prison.
The federal government challenged the law arguing it was preempted by EMTALA to the extent the state statute prohibited abortions in medical emergencies. The district court granted a preliminary injunction in August 2022 enjoining its enforcement. On appeal, a Ninth Circuit panel agreed to stay the lower court's injunction, finding a strong likelihood that the abortion law did not implicate EMTALA. But then in October 2023, the full Ninth Circuit agreed to vacate and rehear the panel decision, putting the injunction back in place. However, when the Court decided to review the case, it stayed the injunction without explanation.
In his opening statement, Joshua N. Turner, the attorney for Idaho, told the Court that “nothing in EMTALA requires doctors to ignore the scope of their license and offer medical treatments that violate state law.” He noted other areas, like opioid use and informed consent, where state regulations limit medical practice.
Under EMTALA, hospitals must provide stabilizing treatment to patients experiencing an emergency medical condition to the extent the hospital has the capacity to do so, which according to Turner, refers not only to the physical availability of staff and facilities, but also to legal availability—i.e., within the scope of state law.
U.S. Solicitor General Elizabeth B. Prelogar argued, however, that state law, which in this case allows emergency abortions only to “prevent the death of the pregnant woman,” may not override what the government characterizes as EMTALA’s broader requirement for stabilizing care to prevent the “material deterioration”--such as the loss of fertility, organ failure, or a serious infection--of health.
“Idaho's ban on abortion is enforceable in virtually all of its applications, but in the narrow circumstances involving grave medical emergencies, Idaho cannot criminalize the essential care that EMTALA requires,” she said.
Justices Kagan, Jackson, and Sotomayor repeatedly pressed Turner on this issue. “[T]he federal mandate is to provide stabilizing care for emergency conditions, regardless of any other directive that the state has or the hospital has that would prevent that care from being provided,” Justice Jackson observed.
Justice Sotomayor picked up on this thread, noting a state could not enact a licensing law prohibiting doctors from treating diabetics with insulin in emergency circumstances when that is the objective medically accepted standard of care to save a person from serious injury or death.
“There are numerous cases where states intervene and say the standard of care in this circumstance for this condition is X, not Y,” Turner said. The government’s reading of EMTALA “requires that those limitations get wiped out and you impose a national standard.”
In a similar vein, Kagan asked whether abortion was being excepted from the requirement that hospitals must provide the standard of care in treating medical emergencies that the state otherwise accepts in other contexts.
Prelogar noted that the federal government would make the same argument if the state had decided to ban epinephrine for anaphylaxis, a severe allergic reaction. “If you have anaphylaxis and you go to an ER anywhere around this country, they're going to give you epinephrine. . . . I don't see any way to try to draw lines around to exclude pregnancy complications in the very narrow but tragic circumstances where the only way to address the woman's condition and prevent material deterioration is for the pregnancy to end.”
Justice Kagan posed the scenario where the woman’s life may not be in jeopardy but her health—for example, the loss of fertility—could be at risk. In those situations, wouldn’t the procedure be necessary to comply with EMTALA, she asked Turner.
Turner acknowledged the hypothetical raised “tough medical questions that implicate deeply theological and moral questions” and that Congress in EMTALA “recognizes that there are two patients to consider in those circumstances.”
But Kagan said federal law does take a position on this tough question. “It says that you don't have to wait until the person is on the verge of death. If the woman is going to lose her reproductive organs, that's enough to trigger this duty on the part of the hospital to stabilize the patient,” she said.
Turner refuted that the Idaho law requires doctors to wait until a patient is on the verge of death. “There is no imminency requirement. There is no medical certainty requirement.” Rather, doctors can perform the procedure based on their good-faith medical judgment. “That’s a lot for the doctor to risk,” Justice Sotomayor commented.
After Justice Sotomayor posed several additional scenarios of possible medical emergencies that could require abortion care, Justice Barrett said she was “shocked” that Turner seemed to be “hedging” and answering in a way that diverged from legislative witnesses who indicated the Idaho law would not be applied in similar circumstances.
“[T]hose doctors said, if they were exercising their medical judgment, they could in good faith determine that lifesaving care was necessary. And that's my point. This is a subjective standard,” Turner explained.
Justice Barrett then asked what if a prosecutor thought no good faith doctor could draw that conclusion under the circumstances. “Does Idaho put out any kind of guidance” as to what is covered by the law and what isn’t?
Turner said the Board of Medicine has licensing oversight over a doctor, and the Idaho Supreme Court has made clear that a doctor’s medical judgment will not be judged based on an objective standard.
Dovetailing on this discussion, there was further debate as to whether the Idaho law even directly conflicted with EMTALA.
Justice Kavanaugh noted the state’s reply brief indicated that the Idaho law would in fact allow the procedure for each of the conditions the federal government identified where EMTALA would require abortion care.
“I don't really understand why we have to address the stabilizing condition if what you say is that nobody has been able to identify a conflict,” Barrett added.
In later questioning, Prelogar stressed that the text of Idaho's law only allows an abortion to prevent death, which is much narrower than what EMTALA requires. The reality on the ground, Prelogar said, is that “women in Idaho today are not getting treatment,” instead they are being airlifted out of the state to neighboring jurisdictions “because the doctors are facing mandatory minimum two years in prison, loss of their license, criminal prosecution” if their decisions are later second guessed.
Justice Alito asked how Congress through its Spending Clause power can impose restrictions on what Idaho can criminalize simply because hospitals in the state have chosen to participate in Medicare.
According to Prelogar, what the state wants “is for its hospitals to be able to accept Medicare funding but not have to face the restrictions that are attached to those funds as an essential part of the bargain.”
Justice Gorsuch questioned whether the federal government could essentially regulate the practice of medicine through Spending Clause legislation. For example, “Congress could prohibit gender reassignment surgeries across the nation, it could ban abortion across the nation, through the use of its Spending Clause authority,” Gorsuch said.
Chief Justice Roberts asked whether federal conscience protections would apply to religiously affiliated hospitals or physicians who object to performing abortions even in emergency situations. As she did during oral arguments in March on the abortion pill mifepristone, Prelogar confirmed the government’s position that “EMTALA does not override [these] conscience protections.”
Justice Alito and Gorsuch also raised EMTALA’s reference to the woman’s “unborn child.” Alito noted it was an “odd phrase to put in a statute that imposes a mandate to perform abortions.”
But Prelogar said that phrase was included because of “well-publicized cases where women were experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren't treating them.” Prelogar disputed that the reference to the “unborn child” was meant to displace “the independent preexisting obligation to treat a woman who herself is facing grave life and health consequences.”
But Justice Alito said the statute imposes a duty to the woman and to the child and leaves it to state law to adjudicate conflicts between those issues. “[W]hat you're asking us to do is to construe this statute that was enacted back during the Reagan administration and signed by President Reagan to mean that there's an obligation under certain circumstances to perform an abortion even if doing that is a violation of state law,” he said.
The case is the second abortion-related litigation that the Court is considering this term. In late March, the Court heard oral arguments in an action looking to significantly curtail access to the abortion pill mifepristone. Food and Drug Admin. v. Alliance for Hippocratic Med., No. 23-235, and Danco Labs., L.L.C. v. Alliance for Hippocratic Medicine, No. 236 (U.S. cert. granted Dec. 13, 2023).