Imagine the following scenario—a pregnant woman enters a Medicare/Medicaid-participating emergency room with preeclampsia,[1] threatening both the safety of the mother-to-be and her fetus. After screening the patient, the emergency room doctor determines that the best and most successful stabilizing treatment would be an abortion. Under the Emergency Medical Treatment and Labor Act, if the emergency medical situation falls within the purview of the statute, the doctor must stabilize the patient. However, state law prohibits abortions at all stages of pregnancy, unless the mother is at risk of imminent death. Should the doctor follow state law and risk a less successful method of stabilization that could lead to serious injury to both the mother and the fetus? Or should the doctor follow federal law and perform the abortion, risking criminal indictment punishable by two to five years of prison time? The upcoming Supreme Court decision in Idaho v. United States will determine what the legally correct course of action would be.
The Emergency Medical Treatment and Labor Act (“EMTALA”), passed in 1986, establishes specific obligations and requirements on all hospitals with emergency rooms that participate in the Medicare and Medicaid program.[2] Under EMTALA, hospitals must provide (1) appropriate screening examinations to determine whether an emergency medical situation (“EMS”) exists and (2) stabilize the patient if there is an EMS.[3] There are certain exceptions in which a hospital may transfer an unstabilized patient to another hospital, but that subsection is not at issue.[4]
The statute defines an emergency medical condition as manifesting itself by “acute symptoms of sufficient severity . . . such that absence of immediate medical care could reasonably be expected to result in” (a) placing the health of individuals or an “unborn child” in “serious jeopardy,” (b) “serious impairment of bodily functions,” or (c) “serious dysfunction” of bodily organs.[5] Congress’s intention was to ensure public access to emergency services regardless of a patient’s ability to pay.[6]
As it relates to pregnant women, EMTALA requires that both the pregnant mother and the fetus be appropriately screened and stabilized when coming to the hospital with an EMS.[7] Given the dangers inherent in pregnancy, scenarios arise in which abortion is the only medical intervention that can stabilize the pregnant patient.[8] In a post-Dobbs v. Jackson Women’s Health Organization world, it is unclear which law prevails when EMTALA requirements come in conflict with restrictive state abortion laws.[9]
Federal District Courts in Texas and Idaho came to different conclusions regarding whether EMTALA preempts the states’ restrictive abortion laws. On July 11, 2022, the Centers for Medicare & Medicaid Services (“CMS”) disseminated a memo (“the memo”) stating that EMTALA preempts any state laws attempting to limit abortion services in a way that prevents pregnant women from receiving stabilizing emergency care required under EMTALA.[10] The memo was intended to ensure that women experiencing complications during pregnancy have access to emergency medical care.[11] On the same day, the Secretary of the Department of Health and Human Services (“HHS”), Xavier Becerra, issued a guidance letter to healthcare providers “reminding [them] of their existing obligation to comply with EMTALA, including when abortion is the necessary stabilizing treatment.”[12]
Three days after CMS and HHS distributed their respective memos, the Texas Attorney General (“AG”) filed a complaint against HHS, seeking a declaratory judgment to hold that HHS acted beyond its statutory authority.[13] The Texas AG specifically argued that the memo (1) violated Texas’ sovereign right to enforce criminal laws, (2) was an unconstitutional exercise of Congress’s spending power, (3) was an unconstitutional delegation of legislative authority, and (4) violated the Tenth Amendment.[14]
The District Court enjoined the memo in Texas, holding that the memo exceeded the authority HHS and CMS had over states.[15] The court further held that there were a number of substantive differences between the duties created under EMTALA and those created under the Texas’ abortion law, the Human Life Protection Act (“HLPA”), which prohibits abortion unless the pregnancy aggravates or induces a life-threatening physical condition.[16] Specifically, the court found that the definition of an emergency condition and the limits to the respective laws differed.[17] EMTALA defines an emergency condition as one in which failure of medical attention could “reasonably be expected to result” in negative outcomes, while the HLPA requires an individual to have a “life-threatening physical condition” in order to justify an abortion.[18] EMTALA defines conditions in which a life-saving abortion would be required as part of the stabilizing care offered by an emergency room[19], while the Texas statute carves out limited scenarios in which an abortion would be allowed in an emergency situation.
The court held that EMTALA and the Texas statute do not conflict, but rather are in line with one another.[20] The court specifically noted that EMTALA’s definition of an EMS encompasses any medical conditions that also place the life of the unborn child in jeopardy.[21] This means EMTALA imposes equal obligations to the pregnant mother and the unborn child, creating a conflict in duties when the health of the mother and the unborn child are at odds.[22] The court found that EMTALA does not preempt the state law because HLPA simply ameliorates the conflict created by the equal obligations in EMTALA,[23] and thus it enjoined enforcement of the memo in Texas.[24]
The Idaho District Court came to a different ruling regarding the same EMTALA issue. Just one day after the Texas District Court Order was issued,[25] the Department of Justice (“DOJ”) filed a motion to enjoin Idaho’s restrictive abortion ban, arguing that it violated EMTALA.[26] The Idaho law imposes criminal liability on physicians who perform abortions, regardless of their medical necessity.[27] It only provides a limited affirmative defense that, in the doctor’s good faith medical judgment, an abortion was “necessary to prevent the death of the pregnant woman.”[28]
In contrast to the Texas District Court, the Idaho District Court found that EMTALA preempted Idaho’s abortion law.[29] It stated that, despite EMTALA’s requirements, the Idaho abortion law criminalizes emergency abortions, no matter the pregnant patient’s condition.[30] Regarding the affirmative defense, the court noted that the defense is “an excuse, not an exception” because “EMTALA requires abortions that the affirmative defense would not cover.”[31]
Moreover, the court held that the Idaho abortion law falls under the Ninth Circuit’s standards of impossibility preemption and obstacle preemption.[32] The former applies when it would be impossible for a physician to comply with both state law (making abortions illegal) and federal law (requiring an abortion if it is considered stabilizing care).[33] Similarly, the latter applies when the state law stands as an obstacle to accomplishing the intentions of Congress.[34] The court did not comment on the “equal obligations” issue presented by the Texas District Court.
While these two holdings do not directly conflict, they oppose one another on similar issues. Both cases have been appealed to their respective circuit courts. The Fifth Circuit affirmed the lower court’s ruling that EMTALA did not preempt Texas abortion law.[35] Conversely, the Ninth Circuit granted the State of Idaho’s motion for a stay, holding that there was no preemption.[36] However, days after, an en banc Ninth Circuit vacated the stay, once again holding that EMTALA preempted the state abortion law.[37] Given the conflict between the final circuit court decisions, the Supreme Court will be ruling on Idaho v. United States in the coming months.[38] Oral arguments have been set for April 24, 2024.[39]
On November 20, 2023, the State of Idaho submitted an application for stay to the Supreme Court. In its application, Idaho makes three arguments: (1) the en banc order’s uncommon nature warrants a stay in and of itself, (2) it is possible to comply with and achieve the purposes of both the Idaho law and EMTALA, and (3) there is an imbalance of equities, with Idaho suffering an irreparable harm while the United States does not.[40] Idaho argues that the en banc Ninth Circuit’s order did not provide any reason for denying the stay, address the United State’s likelihood of success on the merits, or balance the equities of a stay.[41]
Idaho also holds that it would succeed on the merits because EMTALA does not require abortion as stabilizing treatment, but rather “treats [the] unborn child as a patient,” meaning that the impossibility preemption theory would be invalid.[42] Moreover, Idaho emphasizes that Congress did not enact EMTALA with the purpose of mandating or even addressing abortion.[43] Rather, the purpose of the statute was to provide care for the uninsured.[44] Finally, Idaho argues that the en banc Ninth Circuit’s decision prevents the “exercise of democratic self-government” granted to Idaho citizens in regulating abortion.[45] If the stay were granted, however, the United States would not suffer irreparable harm because it would only need to wait for the outcome of future litigation.[46]
In its December 1, 2023 filing, the United States argued that Idaho failed to prove its likely success on the merits of the case.[47] Looking at the plain language of EMTALA, the United States reiterates that covered hospitals are required to provide stabilizing care for emergent patients and that failure to provide such care places a hospital in violation of the statute.[48] It further points out that abortion can be a necessary stabilizing treatment for pregnant women coming into the emergency room, especially in cases of infection, placental abruption, pre-eclampsia, eclampsia, and more.[49] Failure to treat these conditions with abortion when necessary can lead to death or irreversible injuries, such as organ failure, hysterectomy, coma, and more. Therefore, the aforementioned conditions are EMSs under EMTALA.[50] The United States further argues that Idaho law creates an exception for abortion care to prevent the patient’s death, but EMTALA requires stabilization care when the patient could be “reasonably expected” to suffer injury in the absence of medical attention, not just death.[51] As a result, the United States emphasizes, a conflict arises between EMTALA and the Idaho law when abortion care would be necessary to prevent such injury under EMTALA, for which the Idaho law does not make an exception.[52]
The core of the problem lies in statutory interpretation. As the Texas court noted, the definition of EMS applies to individuals “or, with respect to a pregnant woman, the health of the woman or her unborn child. . . .”[53] The Texas Court was correct in identifying the ambiguity of the statute, however, its interpretation of EMTALA’s “equal obligations” is up for debate. First, the use of the word “or” in the statute denotes a choice between stabilizing the pregnant woman or the unborn child in the case of an EMS. If Congress meant to create an equal obligation, they would have used the word “and” to establish that the physician must provide stabilizing care to both the mother and the unborn child.[54] If both the mother and the unborn child come into the emergency room with an EMS, EMTALA is ambiguous as to what the proper procedure would be.
Ultimately, different interpretations create different responsibilities under the law. The Texas interpretation of EMTALA leads to a stricter definition of an EMS, which affects when an abortion is considered the proper stabilizing care. While state courts may interpret federal laws, their interpretation may not directly conflict with the existing law. The question remains whether the Texas Interpretation effectively outlaws abortion, despite its allowance in life-threatening situations. If the Supreme Court were to allow Texas’ abortion laws to stand without reading in exceptions that accommodate the DOJ’s understanding of emergencies, this would indicate that states can adjust the definitions of EMS under EMTALA to severely limit situations in which an emergency abortion would be legal. The Supreme Court’s upcoming decision goes beyond the legality of emergency treatment. If the Court were to rule for Idaho, both pregnant women and providers would be left vulnerable to physical and legal harm. Emergency abortion care would be prohibited, even if it could save the mother from serious harm, essentially changing the standard of care afforded to pregnant women across the United States.
[1] Preeclampsia is a complication some women experience during pregnancy, characterized by high blood pressure. Preeclampsia usually begins after 20 weeks of pregnancy and can lead to serious complications for both the mother and the fetus, and even death in extremely serious cases. Preeclampsia, Mayo Clinic (Apr. 15, 2022), https://www.mayoclinic.org/diseases-conditions/preeclampsia/symptoms-causes/syc-20355745.
[2] Jeffrey A. Singer, No Discharge: Medicaid and EMTALA, CATO Institute (2014), https://www.cato.org/regulation/fall-2014/no-discharge-medicaid-emtala.
[3] The Emergency Medical Treatment and Active Labor Act, 42 USCS §§ 1395dd(a)-(b).
[4] 42 USCS § 1395dd(c).
[5] 42 USCS §§ 1395dd(e)(1)(A)(i)-(iii).
[6] Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 856 (4th Cir. 1994) (“Congress enacted EMTALA to address a growing concern with preventing ‘patient dumping,’ the practice of refusing to provide emergency medical treatment to patients unable to pay, or transferring them before emergency conditions were stabilized”).
[7] 42 USCS §§ 1395dd(e)(1)(A)(i).
[8] Abortion Can Be Medically Necessary, The American College of Obstetricians and Gynecologists (Sept. 25, 2019), https://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-necessary.
[9] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (holding that the Constitution does not confer a right to abortion, returning the authority to regulate abortion back to the individual states).
[10] See Ctrs. for Medicare & Medicaid Servs., Reinforcement of EMTALA Obligations Specific to Patients Who Are Pregnant or Are Experiencing Pregnancy Loss (2022).
[11] See generally Id.
[12] Letter from the Dep’t of Health & Hum. Servs. and Ctrs. for Medicare & Medicaid Servs. to Governors of the United States (Aug. 26, 2022).
[13] Steven G. Pine, Gina L. Bertolini, Health Care Providers Face Uncertainty in Light of Federal District Court Split on EMTALA Preemption Regarding Emergency Abortions, K&L Gates LLP (2023), https://marketingstorageragrs.blob.core.windows.net/webfiles/Health%20Care%20Providers%20Face%20Uncertainty%20in%20Light%20of%20Federal%20District%20Court%20Split%20on%20EMTALA%20Preemption%20Regarding%20Emergency%20Abortions.pdf.
[14] State of Texas Complaint, Texas v. Becerra, 623 F. Supp. 3d 696 (W.D. Tex. 2022) (No. 7:23-119-cv).
[15] See Texas v. Becerra, 623 F. Supp. 3d 696 (N.D. Tex. 2022).
[16] Human Life Protection Act of 2021, Tex. Health & Safety Code § 170A.002 (2021).
[17] Steven G. Pine, Gina L. Bertolini, Health Care Providers Face Uncertainty in Light of Federal District Court Split on EMTALA Preemption Regarding Emergency Abortions, K&L Gates LLP (2023), https://marketingstorageragrs.blob.core.windows.net/webfiles/Health%20Care%20Providers%20Face%20Uncertainty%20in%20Light%20of%20Federal%20District%20Court%20Split%20on%20EMTALA%20Preemption%20Regarding%20Emergency%20Abortions.pdf.
[18] Compare Tex. Health & Safety Code § 170A.002(b)(2) with 42 U.S.C. § 1395dd(c)(1)(A)(ii).
[19] Id.
[20] See Becerra, 623 F. Supp. 3d at 727.
[21] 42 C.F.R. § 489.24(b).
[22] Texas Order at 45-66.
[23] See Becerra, 623 F. Supp. 3d at 730-32.
[24] See Clarifying Policies Related to the Responsibilities of Medicare-Participating Hospitals in Treating Individuals with Emergency Medical Conditions, 42 C.F.R. §§ 413, 482, 489 (2023).
[25] Steven G. Pine, Gina L. Bertolini, Health Care Providers Face Uncertainty in Light of Federal District Court Split on EMTALA Preemption Regarding Emergency Abortions, K&L Gates LLP (2023), https://marketingstorageragrs.blob.core.windows.net/webfiles/Health%20Care%20Providers%20Face%20Uncertainty%20in%20Light%20of%20Federal%20District%20Court%20Split%20on%20EMTALA%20Preemption%20Regarding%20Emergency%20Abortions.pdf.
[26] See Complaint, United States v. Idaho, 623 F. Supp. 3d 1096, 1101 (D. Idaho 2022) (No. 1:22-cv-329).
[27] Defense of Life Act, Idaho Code § 18-622(2)(a)(i) (Idaho 2023).
[28] Defense of Life Act, Idaho Code § 18-622(2)(a)(i) (Idaho 2023).
[29] United States v. Idaho, 623 F. Supp. 3d 1096, 1101 (D. Idaho 2022).
[30] See Id. at 1108; see also Idaho Code § 18-622(1).
[31] Idaho, 623 F. Supp. 3d at 1109.
[32] Id. at 1109-12.
[33] See Id.
[34] See Id. at 1111-13.
[35] Texas v. Becerra, No. 22-11037, 2023 WL 2366605 (5th Cir. 2023).
[36] The Idaho Supreme Court had found the Idaho abortion statute to be consistent with EMTALA, which is why the court held there was no preemption. United States v. Idaho, No. 23-35440 (9th Cir. 2023).
[37] United States v. Idaho, 82 F.4th 1296 (9th Cir. Oct. 10, 2023).
[38] United States v. Idaho, No. 23-35440 (9th Cir. 2023), cert. granted, 92 U.S.L.W. 3166 (U.S. Jan. 5, 2024) (No. 23-727).
[39] The Court is consolidating Moyle v. United States with Idaho v. United States for 1 hour oral arguments in April 2024. See Idaho v. United States, 2024 U.S. LEXIS 3 (2024); Moyle v. United States, 217 L. Ed. 2d 287 (2024) (holding that Idaho’s restrictive abortion law would be preempted by EMTALA, barring Idaho from enforcing the abortion law).
[40] Emergency Application for a Stay Pending Appeal at iii, Idaho v. United States, No. 23A470 (2023).
[41] See Id. at 10-11.
[42] See Id. at 14.
[43] See Id. at 23.
[44] Id.
[45] The State of Idaho argues that Idaho citizens are able to regulate and/or prohibit abortions by voting for representatives that reflect their personal and political views. See Id. at 25.
[46] Id.
[47] Response in Opposition of the Application for a Stay at 3, Idaho v. United States, No. 23A470 (2023).
[48] Id. at 13.
[49] Id.
[50] Id. at 14.
[51] Id. at 17.
[52] Id. at 17-18.
[53] 42 U.S.C §1395(e)(A)(i) (emphasis added).
[54] Ira P. Robbins, ‘And/Or’ and the Proper Use of Legal Language, Law Wire (May 7, 2018) https://www.wcl.american.edu/impact/lawwire/and-or-and-the-proper-use-of-legal-language/.
Tarra Olfat
Tarra Olfat is a 2L at GW Law and a Kahan/FDA Fellow. Tarra is passionate about health law regulation and is pursuing a health law concentration.