Spending Clause Powers at Risk: How Judicial Review of EMTALA and Idaho’s Abortion Ban in Moyle v. United States May Further Limit the Regulatory State

• July 12, 2024

• Alicia Macklin , Hooper Lundy & Bookman PC
• Julia Michael , Kaiser Foundation Hospitals and Health Plan
• Kerry Sakimoto , Hooper Lundy & Bookman PC

Following the accidental publication of the U.S. Supreme Court’s decision in Moyle v. United States[1] on June 26, 2024, and then the official publication the next day, headlines suggested a temporary win for reproductive rights advocates. News reports described how the Court’s holding meant that abortions may be provided in Idaho where the abortion is necessary to stabilize an emergency medical condition in accordance with the Emergency Medical Treatment and Labor Act (EMTALA), at least for now. But few, if any, news outlets captured the conservative majority’s interest in an issue that was not fully briefed or considered by the lower courts: Can a law enacted pursuant to Congress’ Spending Clause power that imposes conditions on private parties (as opposed to states) preempt a state criminal law?

A close reading of the opinion makes clear that Congress’ Spending Clause power (or lack thereof) is an issue to be raised again, certainly at the Ninth Circuit, and potentially back at the Supreme Court. If successful, the argument proffered by several conservative amici, mentioned in Justice Barrett’s concurring opinion, and endorsed in Justice Alito’s dissenting opinion, would not only mean that EMTALA cannot be interpreted to require emergency abortion services in contradiction with state abortion bans, but also would mean that federal funding conditions and state laws are “equal opposing powers” and state legislatures can potentially legislate themselves out of other federal requirements. Such a result may be in accord with other recent Supreme Court decisions disbanding decades-old holdings that reinforced the federal government’s duty and power to regulate for the general welfare.[2] As discussed below, this Spending Clause issue deserves more attention—if ratified by the courts, it could have far-reaching implications for not just abortion rights and the Medicare program, but all federal programs where the federal government seeks to impose conditions on private parties (e.g. hospitals, schools, non-governmental organizations, individuals, etc.) in receipt of federal funds.

In the background of Moyle, the Supreme Court also has a decision to make on a petition for certiorari in a similar case, although with slightly different legal questions (as we previously described[3]) related to EMTALA and Texas’ abortion law. It is possible that the Supreme Court may wait to take up the Texas case, if at all, until the Ninth Circuit issues its decision with respect to the Idaho case, but nothing has been decided yet.

First, a bit of background: the Supreme Court decided to take up this case following the Ninth Circuit’s ultimate decision not to stay the Idaho district court’s preliminary injunction to block Idaho from enforcing its criminal abortion statute to the extent EMTALA mandates such care. On January 5, 2024, at Idaho’s request, the Supreme Court granted “certiorari before judgment,” believing that the issue of preemption—whether EMTALA preempted Idaho’s criminal abortion statute (to the extent it prohibited abortions to stabilize an emergency medical condition)—was one of “extraordinary public importance,” and justified deviation from normal appellate practice. Additionally, the Supreme Court issued a stay of the Idaho district court’s preliminary injunction, allowing Idaho to enforce its criminal abortion statute regardless of whether it conflicts with EMTALA’s requirements.

Despite the Supreme Court’s initial view of urgency and importance of this case, a single sentence represents the Supreme Court’s holding—that its review was “improvidently granted” and that the stay is vacated. The panoply of the Justices’ concurrences and dissents,[4] however, show a divided bench across the substantive issues.

With respect to the Supreme Court vacating its stay, Justice Barrett’s concurrence, joined by Chief Justice Roberts and Justice Kavanaugh, emphasized that the “developments” in the parties’ arguments undercut the conclusion that Idaho would suffer irreparable harm under the preliminary injunction. In reaching this conclusion, Justice Barrett focused on the federal government’s interpretation that an abortion is not a stabilizing treatment for an emergency mental health condition, and that EMTALA does not require individual doctors to perform abortions where they have conscience objections.

Justice Kagan’s concurrence, joined by Justice Sotomayor and Justice Jackson, in part, however, emphasized the continued gap (or “light”) between EMTALA and Idaho law. Whereas Idaho law only allows abortions when “necessary to prevent” a pregnant individual’s death, EMTALA requires Medicare-funded hospitals to offer stabilizing care, which could include an abortion, when necessary to stabilize a medical condition that seriously threatens a pregnant individual’s life or health, including where continuing a pregnancy could place the pregnant individual at risk of grave health consequences, such as loss of fertility. Justice Kagan further emphasized the immediate on-the-ground consequences that the Supreme Court’s stay has had on patients and providers, noting that Idaho’s largest provider of emergency services has had to airlift pregnant women to hospitals in neighboring states every other week, compared to once in all of the prior year when the injunction was in effect.

The Justices’ opinions also vary significantly on the Supreme Court’s ultimate decision to punt on the merits, with Justices Alito, Gorsuch, Thomas, and Jackson urging the Court to decide on the preemption question, albeit for drastically different reasons. On the one hand, Justices Alito, Gorsuch, and Thomas rejected the federal government’s argument that EMTALA offers any form of abortion protections preempting state abortion laws as “plainly unsound.” On the other hand, Justice Jackson’s dissent argued that there is a clear conflict between Idaho’s law and EMTALA, such that EMTALA preempts Idaho’s near-total abortion ban, regardless of “the attempt by Idaho’s counsel to muddy the waters concerning the scope of the State’s law.” As Justice Jackson put it, “[t]his pre-emption issue is not going away anytime soon and will most certainly return to this Court.”

What many have glossed over in the conservative Justices’ concurrences and dissents, however, is the Spending Clause issue, first seriously considered at the Supreme Court, and the potential consequences this may have in the context of EMTALA and beyond.  

The Spending Clause grants Congress broad discretion to fund private programs or activities for the “general Welfare,”[5] including authority to impose conditions on the use of such funds to ensure they are used in the manner Congress intends.[6]

As a general matter, if a party objects to those limits, its recourse is to decline the funds. However, there are also constitutional limitations to such funding conditions. Congress must (1) provide clear notice of any conditions; (2) the condition must relate to the program or funding stream; (3) the condition may not be unduly coercive, and (4) the condition may not induce a recipient to violate another constitutional provision.[7] Generally, the Court has analyzed these constitutional limitations in the context of conditions placed on states, as opposed to private parties. Thus, there is an open question as to how these constitutional limits and preemption apply when Congress uses its spending power and conditions to direct funding to private parties.  

Idaho argued in its brief at the Supreme Court that because EMTALA was passed as Spending Clause legislation and funds only private parties, it cannot preempt the state’s criminal law. Multiple amici weighed in on this issue as well, and during oral arguments several Justices questioned both parties on the potential impact of such a ruling.

Ultimately, Justice Alito et al. made clear that his response to the open question was that laws enacted by Congress under its spending power that condition private parties’ receipt of federal funds on certain conditions cannot automatically preempt state law. According to Justice Alito, federal funding conditions applied solely to private parties cannot preempt state law where the state does not consent to the conditions after clear notice and/or where the conditions are ambiguous. The argument that states must consent to federal funding conditions on private parties means that if a state wants to prevent its citizens from complying with a federal funding requirement, their legislature can pass a law prohibiting the action otherwise required by the funding condition. This holds true whether or not the state legislature intentionally seeks to avoid federal requirements or not.

For example, in addition to EMTALA, Congress amended Section 1866 of the Social Security Act in 1990 when it enacted the Patient Self-Determination Act (PSDA) requiring Medicare-participating facilities to establish written policies and procedures on advance directives, and prohibiting Medicare-participating health care facilities from requiring a patient to execute an advance directive as a condition of providing care to the patient.[8] Like EMTALA, this requirement applies to all patients of Medicare-participating health care facilities, not just Medicare beneficiaries. Advance directives, however, are more specifically regulated by state law. Similarly, states regularly regulate the procedures of health care facilities as part of their licensing requirements.[9] Therefore, it would not be totally preposterous for a state legislature to take the position that all licensed nursing facilities should require as a condition of admission that residents with capacity complete an advance directive, and thereafter, pass legislation to this effect. Under Justice Alito’s interpretation of the Spending Clause, Medicare-participating nursing facilities would then be in a bind: do they require as a condition of admission to their facility that residents with capacity complete an advance directive in compliance with state law but in conflict with the Medicare requirement, or do they forego this requirement to comply with their Medicare requirements. Do they risk their state licensure or their federal reimbursement?

It seems that if this Spending Clause argument is ultimately ratified by the Supreme Court, it would leave us in a world where private beneficiaries of federal funds may find themselves in a predicament—comply with the federal condition to receive the funds or forego federal funds to comply with state law. This seems to create “equal opposing powers,” which the Supreme Court said 200 years ago and has maintained for two centuries was exactly the situation the Supremacy Clause was designed to avoid:

But the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. . . . The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it . . .[10]

Moyle v. United States will now make its way back down to the Ninth Circuit for a decision on the merits, which will almost certainly include a review and determination of this Spending Clause issue. And, as Justice Jackson suggests, it is likely not a matter of if this issue will make it back to the Supreme Court, but only when.

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• Reproductive Health Law Hub