June 27, 2024
Please see below for reflections from Professor Michele Goodwin, co-faculty director of the O’Neill Institute for National and Global Health Law, regarding today’s ruling in Moyle v. United States.
The Supreme Court’s per curiam decision in MOYLE v. UNITED STATES — the EMTALA decision — settles the issue in a technical manner. A quick and incomplete read of the case is that as a formal matter, the court does not substantively give guidance in this case. However, that reading lacks nuance, because the Justices signal quite strongly in this case through their various opinions, both the concurring opinions as well as the dissents. Indeed, the concurrences and dissents in this case tell us much about factions among Justices on the Supreme Court and the status of reproductive health in the United States.
For Justices Kagan and Ketanji Brown Jackson, this is a case that forestalls what will likely be additional future challenges regarding federal law protecting pregnant individuals. As a technical matter, women in Idaho, and the rest of the country should feel perhaps a sense of relief that if they go to an emergency room, they are entitled to receive the stabilizing care that they need. But we also must be cautious about that, as well.
There are significant threats that have been leveled at doctors, threats to criminally punish them, to fine them through civil penalties, and even to bar them from practicing medicine if they provide abortion care. In South Carolina and Louisiana, lawmakers have proposed the death penalty as a punishment for performing and receiving an abortion. As such, lawmakers in states with abortion bans have caused a chilling effect in medicine, where doctors are now afraid to assist their suffering patients. Under such enormous stress, what we saw in Idaho is that doctors then chose to put their patients in helicopters so that they could be airlifted to states where they could receive basic medical care.
This opinion should give doctors some sense of relief — they do not have to put their patients in helicopters and they can provide pregnant women the type of dignified, medically indicated care that they need and deserve in Idaho. That said, given the backdrop of these times, given the ways in which prosecutors have also weaponized their authority and discretion in the wake of Dobbs, doctors may continue to feel unsafe. Doctors may continue to experience threats from prosecutors.
It’s worth noting Kate Cox’s experience in the state of Texas. Like Idaho, Texas has a very restrictive abortion ban. However, even after a lower court judge ruled that Ms. Cox’s life-threatening medical condition met the state’s exception, which would allow her to terminate the non-viable pregnancy, the State’s Attorney General — Ken Paxton — threatened her doctors with criminal punishment and civil fines. He went so far as to contact local hospitals where she might go to get the type of reproductive health care that she should have been allowed to get, according to the judge’s ruling. Ultimately, Kate Cox left the state of Texas to receive an abortion.
It’s possible that women will still feel unsafe in and flee the state of Idaho. If pregnant women in crisis continue to feel threatened, or if the doctors that would otherwise provide reproductive health care still feel vulnerable and under pressure from the state lawmakers or prosecutors — this case may have limited effect. That said, today the Supreme Court has not dismantled EMTALA. Today, the Supreme Court has not cabined the reach of EMTALA in such a way as to remove pregnant women from being covered under the law.
It’s worth noting Justice Alito’s dissenting opinion — it’s an opinion that is so worrisome that Justice Kagan in her concurring opinion decided to write about it. Essentially what she noted is that Justice Alito’s claim that EMTALA should not reach pregnant women is a disastrous argument. It’s an argument that is quite cynical. According to Justice Alito, abortion is not mentioned in EMTALA. This seems to be a line of thinking that Justice Alito has conveniently leaned into when there isn’t sturdier ground for his opinions.
This kind of methodology of saying “if I don’t see the word, then it must not exist within law…protections for it must not exist in law” is deeply flawed and certainly dangerous for healthcare. Typically, in American law, legislation does not spell out every circumstance within its reach. Just like EMTALA does not spell out heart valves, heart stents, various other things that individuals need when they may be seen for emergency medical care. If you think about it, in the wake of COVID-19, so many people were in distressful conditions, many Americans died. For Americans who had COVID-19, the only relief that they had was to go to a hospital emergency room to get care. If one were to take seriously Justice Alito’s dissenting opinion in this case, it would suggest that people who sought COVID-19 relief perhaps shouldn’t have qualified to get it because EMTALA does not mention COVID-19. You can imagine that since the law was enacted, the various kinds of conditions that people experienced that are not named in the law. One could go down a list of these things.
Even before the Emergency Medical Treatment and Labor Act was enacted by Congress, women were receiving emergency medical care that included abortion and pregnancy termination. One only needs to look at the title of the legislation itself, Emergency Medical Treatment and Labor Act to understand that Congress knew that by enacting this law, it would provide comfort, relief, and important medical care to individuals that are pregnant and in crisis and distress.
It was well-known before EMTALA was enacted, that sometimes women receive emergency care for a pregnancy termination as 20% to 30% of pregnancies end in miscarriage or stillbirth and there are pregnancies that simply are not perfect.