U.S. Supreme Court Permits Emergency Abortion Care in Idaho for Now, But Uncertainty About EMTALA’s Reach Remains
- June 28, 2024
A divided U.S. Supreme Court this week cleared the way for health care providers in Idaho, at least temporarily, to perform emergency abortions for women facing serious health repercussions. Moyle v. United States, Nos. 23-726 and 23-727 (U.S. June 27, 2024).
The Court majority dissolved the stay of a preliminary injunction blocking the state from enforcing an Idaho statute that criminalizes most abortions to the extent the law prevented care mandated by the Emergency Medical Treatment and Labor Act (EMTALA). The Court dismissed the case without ruling on the merits.
The Idaho abortion law includes an exception “to prevent the death of the pregnant woman” but not to preserve health, which the federal government argued conflicted with EMTALA’s broader requirement to provide stabilizing medical treatment necessary to ensure “no material deterioration” of an emergency medical condition.
The Court, however, declined to resolve whether EMTALA preempted the Idaho statute in the context of medical emergencies, leaving health care providers with significant uncertainty and legal risk in states with similar abortion laws.
The one-sentence unsigned opinion indicates only that review was “improvidently granted,” but multiple concurrences and dissents offer insight into the Justices’ conflicting views of the issues.
In a dramatic twist, an unofficial version of the much-anticipated opinion was briefly posted on the Court’s website by mistake, reminiscent of the early, albeit intentional, leak of the landmark Dobbs v. Jackson Women’s Health Organization decision, 597 U.S. 215 (2022), which struck down federal constitutional protections for abortion roughly two years ago. The Court released the official opinion in Moyle the following day.
The Court took up the case on an expedited basis after the full Ninth Circuit revived the lower court’s preliminary injunction and scheduled oral arguments on the merits. Before the Ninth Circuit agreed to review the action en banc, a three-judge panel of the federal appeals court stayed the injunction. The case will now return to the Ninth Circuit for further proceedings.
Majority Walks Back Early Intervention
Justice Kagan, joined by Justice Sotomayor, concurred in the decision to vacate the Court’s stay and dismiss the action because “Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute.” Instead, the lower courts should proceed with the litigation in the regular course, Kagan said.
Consistent with her questioning during oral arguments, Kagan agreed with the government that EMTALA overrides the Idaho statute in the narrow class of cases where abortion is the necessary stabilizing treatment not only to protect a woman's life, but also to prevent “grave health consequences” such as a loss of fertility or organ failure.
“EMTALA unambiguously requires that a Medicare-funded hospital provide whatever treatment is necessary to stabilize a health emergency—and an abortion, in rare situations, is such a treatment,” Kagan wrote.
In her concurrence, Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, indicated the circumstances that prompted expedited review in the first place had changed. According to the three Justices, shifting "litigating positions” had dramatically narrowed, though not eliminated entirely, EMTALA’s conflict with Idaho’s law.
In their view, the government’s acknowledgment that an abortion is not required as stabilizing treatment for mental health conditions and that federal conscience protections applied in the EMTALA context, and Idaho’s assertion that an emergency abortion would be permitted under state law for certain conditions that the United States flagged such as preterm premature rupture of the membranes, placental abruption, and pre-eclampsia, undercut the need for the Court’s early intervention in the case.
Barrett’s concurrence also cited as a reason for sending the case back to the lower courts a “difficult and consequential argument” that the state raised for the first time before the Court about whether Congress in Spending Clause legislation can obligate recipients of federal funds to violate state criminal law.
Competing Dissents Agree That Court Should Weigh In
Justice Jackson, who concurred with Kagan’s statutory analysis and with the decision to lift the stay, wrote separately to dissent on the dismissal of the case without addressing the merits. While the injunction in Idaho is in place for now, similar abortion laws in other states remain in effect, leaving providers in a vulnerable position and limiting patients’ access to medically necessary emergency care, Jackson said.
Jackson refuted the view that any narrowing of the clear conflict between federal and state law alleviated the imperative to resolve the EMTALA issue. Representations in briefs or in oral arguments are not “definitive interpretation of Idaho law” and local prosecutors could be unaware of, or disregard, these positions, Jackson warned.
“[T]he conflict between the state and federal law—as they are actually being interpreted and applied on the ground—is both substantial and significant,” Jackson wrote. “It is a clash that clearly exists despite the attempt by Idaho’s counsel to muddy the waters concerning the scope of the State’s law.”
Jackson also predicted that the EMTALA preemption issue would be back before the Court soon. In fact, the United States already has petitioned the Court to review a permanent injunction enjoining the Department of Health and Human Services from enforcing in Texas guidance that physicians must provide abortion care under EMTALA as a stabilizing treatment to pregnant women experiencing an emergency medical condition regardless of state restrictions on the procedure. Texas v. Becerra, No. 23-10246 (5th Cir. Jan. 2, 2024).
“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson said.
In a lengthy dissent, Justice Alito, joined by Justices Thomas and Gorsuch, flatly rejected the government’s EMTALA preemption theory, calling it "plainly unsound."
“Far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her ‘unborn child,’” Alito said.
Justice Kagan took aim at this argument in her concurrence, noting that Congress amended the statute to ensure that "a woman with no health risks of her own can demand emergency-room treatment if her fetus is in peril." Where a woman's life or health is in jeopardy, the hospital's duty is to provide the stabilizing treatment necessary for her condition, Kagan said.
Alito also argued that even if EMTALA was ambiguous, because it was enacted under the Spending Clause, the Court would have to resolve that ambiguity in favor of Idaho. The statute does not spell out that the receipt of federal funds is conditioned on hospitals performing abortions contrary to state law. And Idaho did not agree to be bound to EMTALA, "let alone to surrender its historic power to regulate the practice of medicine or the performance of abortions within its borders."
Addressing this issue during oral arguments, U.S. Solicitor General Elizabeth B. Prelogar said essentially 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.”
Interestingly, the three conservative Justices agreed with Jackson on one point: that the Court should have ruled on the merits. “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” Alito commented.
Court’s Rulings Leave Major Questions Unanswered
The Court’s ruling in the EMTALA action and its decision earlier this month in a lawsuit that sought to narrow access to the abortion pill mifepristone sidestepped the weighty substantive issues raised in both cases, setting the stage for more legal battles ahead in courts across the country.
The Court rejected the abortion pill action on standing, finding the plaintiff doctors and medical groups failed to show an injury allowing them to challenge the Food and Drug Administration’s regulatory regime for the drug. Food and Drug Admin. v. Alliance for Hippocratic Med., No. 23–235 (U.S. June 13, 2024). Though the ruling on standing was widely expected, the decision left the door open for ongoing efforts to disrupt access to mifepristone, which along with a second drug misoprostol, accounts for about half of abortions nationwide.
Meanwhile, the Court’s decision in the EMTALA case, while seemingly a small, though potentially short-lived win for reproductive rights advocates, means health care providers must continue to navigate an uncertain legal landscape in delivering emergency reproductive care.
"While we are pleased that the Supreme Court’s decision to dismiss these cases as improvidently granted will restore the temporary stay on Idaho’s law, we are disappointed that physicians, nurses, and other clinicians across the country still do not have needed clarity," said American Hospital Association General Counsel Chad Golder in a statement.
Josh Turner, the attorney for Idaho who argued the case before the Court, said people "should not be fooled by the misleading headlines in the media," expressing "zero doubt" following the opinion that the Idaho statute "is not preempted by EMTALA and will be vindicated in full.”
“We are relieved for the moment, but hardly celebrating," said Nancy Northup, president and CEO of the Center for Reproductive Rights. "The Court kicked the can down the road on whether states with abortion bans can override the federal law requirement that hospitals must provide abortion care to patients in the throes of life-threatening pregnancy complications."