Two years ago, the Supreme Court overturned the federal right to abortion in Dobbs v. Jackson Women’s Health Organization. Despite the Court’s previous signaling that abortion access would be left to the states, the Court is set to decide two major cases this term that will impact access to reproductive health services: Idaho v. United States and Food and Drug Administration v. Alliance for Hippocratic Medicine.
Broad abortion bans are currently in effect in 18 states — 14 states ban all abortions, and four states ban abortions starting at some point during the first trimester of pregnancy. Anti-abortion policymakers and advocates seeking to minimize the severity of abortion bans often point to their exceptions. Many exceptions rely on confusing or unclear language, making it difficult for physicians to determine whether patients experiencing medical emergencies are exempted from abortion bans.
“Medical emergency” exceptions (or the lack thereof) are the basis of numerous lawsuits involving state abortion bans that are currently before the courts. Patients who were denied or delayed in receiving abortion care in the face of severe and dangerous pregnancy complications have challenged medical emergency exceptions in Idaho, Tennessee, and Texas abortion bans. Meanwhile, others are challenging the federal government’s ability to enforce laws that set the standard of care for patients experiencing medical emergencies.
Some lawsuits argue that state abortion bans directly conflict with the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law that requires emergency providers to screen and stabilize patients who have emergency medical conditions (EMCs). The complaints cite guidance and letters that the U.S. Department of Health and Human Services (HHS) issued on July 11, 2022, which reaffirmed that abortion care may be appropriate to stabilize an EMC under EMTALA.
Courts in various states have considered whether the federal government has the authority to enforce this interpretation of EMTALA. The Supreme Court announced it would weigh in on Idaho v. United States and heard oral arguments on April 24, 2024. This Expert Column summarizes the lower court decisions in Idaho v. United States and Moyle v. United States , analyzes the central themes raised during the Supreme Court oral argument, and discusses the stakes of the impending decision.
Background
EMTALA
In 1986, Congress enacted EMTALA due to overwhelming evidence that emergency rooms denied care to many low-income patients from marginalized communities experiencing EMCs. To address this practice of patient dumping, EMTALA imposes three duties on Medicare-participating hospitals’ emergency departments to ensure that patients are stabilized before transfer. First, the department is required to appropriately screen the patient to determine whether the patient has an EMC — a condition that, if left untreated, could reasonably be expected to place the patient’s health in serious jeopardy. Second, the department must either stabilize the patient or transfer them to a facility that is able to provide such care. Finally, facilities may not transfer unstable patients with EMCs unless there is informed consent and the transfer is appropriate.
While EMTALA does not codify specific treatments for particular EMCs, it creates a duty of care that turns on the physician’s reasonable medical judgment. It is commonly understood among medical professionals that it may be necessary to provide abortion care when that is the appropriate treatment to stabilize a pregnant patient in critical condition. HHS guidance reiterates this understanding and reaffirms that “when a state law prohibits abortion and does not include an exception for the life of the pregnant person…that state law is preempted.”
Litigation Over Idaho’s Abortion Ban
Idaho’s 2020 near-total abortion ban was set to take effect on August 25, 2022, after the Supreme Court overturned Roe v. Wade. The Idaho law bans nearly all abortions and contains narrower exceptions than what is required under EMTALA. Abortion in Idaho may be obtained only in very limited circumstances — preventing the death of the pregnant individual, ectopic pregnancies, or pregnancies resulting from rape or incest (which are allowed only in the first trimester). Notably, the original Idaho law did not include these exceptions but was amended in early 2023.
The U.S. Department of Justice (DOJ) challenged this abortion ban in federal court on August 2, 2022, before it was set to take effect, arguing that it directly conflicts with EMTALA and was therefore preempted. Under the Constitution’s supremacy clause, federal law takes precedence over state law when the two conflict. The government argued that, to the extent that Idaho law prohibits and criminalizes the provision of care required under EMTALA, EMTALA trumps the Idaho abortion ban.
The district court temporarily paused the abortion ban, reasoning that it would be “impossible to comply” with both EMTALA and the abortion ban. The state of Idaho and the Idaho legislature, who joined the lawsuit, appealed this decision to the Ninth Circuit and sought emergency relief with the Supreme Court. The Supreme Court agreed to review the lower court’s decision in January 2024 and allowed the Idaho law to remain in effect while the case makes its way through the appeals process.
Separately, Texas and two provider organizations challenged HHS’ 2022 guidance on the scope of EMTALA’s protections. The district court and the Fifth Circuit both sided with the plaintiffs — preventing HHS from enforcing the EMTALA guidance in Texas. The outcome of the Supreme Court’s decision concerning Idaho’s state law will likely affect the resolution of the Texas lawsuit.
In the following section, we unpack the major themes that emerged during the oral argument.
Oral Argument
Impacts on Physicians and Their Pregnant Patients
The justices focused on how Idaho’s abortion ban affects the provision of care on the ground. Various justices, as well as Solicitor General Elizabeth Prelogar, referenced the devastating consequences of criminalizing the treatment of emergency complications that pose grave threats to pregnant patients’ lives, health, and fertility. For example, they noted, failure to treat certain pregnancy complications immediately risks sepsis and a hysterectomy, while severe preeclampsia can lead to kidney failure and life-long dialysis. Prelogar explained that for patients facing these types of grave risks, physicians either have to delay treatment and allow conditions “to materially deteriorate, or they’re airlifting [patients] out of the state” to get the emergency care they need, because physicians in states with abortion bans are caught between providing necessary abortion care to patients and facing loss of medical license or criminal prosecution.
Both parties focused on the appropriate standard of care for treating pregnant patients with EMCs. Joshua Turner, the attorney for Idaho, argued that the standard of care is determined by state licensing boards and laws and that in Idaho, the standard is that “there is a lifesaving exception for certain abortions.” Justice Elena Kagan pressed on this, asserting that abortion is also the accepted standard of care when the pregnant person’s health, but not life, is in peril — for example, when the person is in jeopardy of losing their reproductive organs or the ability to have children in the future. She noted that EMTALA codifies that standard to ensure “that no material deterioration of the condition” occurs. In response, Turner suggested that “Idaho law does not require doctors to wait until a patient is on the verge of death,” as the lifesaving exception does not have an imminence or medical certainty requirement. Further, he asserted that doctors who use their subjective, good-faith medical judgment to comply with the law while providing care would be safe from criminal prosecution under abortion bans. However, Turner argued that the text of EMTALA does not contain a national standard of care requirement that would preempt the standard in Idaho or any other state.
Prelogar agreed with Justice Kagan that Congress indeed set a national standard of care that emergency physicians must provide stabilizing care to people with EMCs. Additionally, in response to Turner’s argument that the federal government’s reading of EMTALA would require abortions for pregnant patients experiencing mental health emergencies, Prelogar clarified that abortion “is not the accepted standard of practice to treat any mental health emergency.”
Preemption of Idaho Abortion Law
Several justices were skeptical of Idaho’s argument that the Idaho abortion ban does not directly conflict with EMTALA. Justice Sonia Sotomayor noted that there is a “huge difference” between the two laws and that “some women who present serious medical conditions that…[under] federal law require medical treatment…will not be treated under Idaho law.” Justice Ketanji Brown Jackson pointed out that, under EMTALA, a hospital “must provide” stabilizing treatment to those experiencing EMCs based on staff and facility capacity; however, under Idaho law, “[a clinician] cannot provide that treatment…unless necessary to prevent a patient’s death.” Justice Amy Coney Barrett questioned Idaho’s decision to appeal the lower court’s decision in this case based on its position that the ban could still be enforced absent any conflicts with EMTALA.
Pushing back against Idaho’s position that the government’s interpretation of EMTALA is unprecedented, Justice Sotomayor referenced “countless briefs” illustrating that pre-Dobbs HHS cited hospitals for improperly discharging patients who required an abortion as stabilizing treatment. Following traditional tools of statutory interpretation, years after EMTALA’s enactment, she noted that Congress acknowledged its breadth in the text of the Affordable Care Act (ACA) by requiring providers to follow federal and state laws regarding emergency care. Additionally, Prelogar emphasized that EMTALA does not conflict with the Hyde Amendment, a provision that prohibits the use of federal funds for most abortions, noting that the ACA explicitly states that the law does not displace EMTALA and Hyde provisions. This illustrates that Congress recognized that EMTALA and Hyde operate in “their own distinct spheres” and allow abortions to be a required stabilizing treatment even though the treatment is not funded by federal programs.
Conscience Objections and Fetal Personhood
Various justices also expressed concerns about the potential consequences of the Biden administration’s position in this case for health providers with conscience objections and the interests of the “unborn child.” Prelogar explained that EMTALA does not override conscience objections, whether institutional or individual. She also confirmed if a hospital were to claim a blanket objection to life- or health-preserving pregnancy termination care, it “would be honored vis-à-vis HHS’s enforcement ability.” She explained that hospitals “should have plans in place to honor the individual doctor’s conscience objection while ensuring appropriate staffing for emergency care.” When pressed by Justice John Roberts, Prelogar stated that continually failing to meet the sufficient personnel requirement would leave a hospital out of compliance with Medicare’s conditions of participation and at risk of termination of its funding agreement.
In an apparent effort to use the text of EMTALA to align with the views of Idaho and other policymakers opposed to abortion access, Justice Samuel Alito noted that the stabilization requirement includes emergency medical conditions that place the health of the “unborn child” in serious jeopardy and expressed concerns that performing an abortion would be “antithetical to that duty.” Prelogar pushed back on the notion that the fetus displaces the woman as an individual with an emergency medical condition. Instead, she stressed that the inclusion of the “unborn child” in the statute was intended to expand protection for the pregnant woman to include situations where the fetus’s health or life — and not her own — is at risk. According to Prelogar, the “stabilization obligation equally runs to her and makes clear that the hospital has to give her necessary stabilizing treatment.”
Spending Clause
A final issue of debate was the role of Congress’ spending power in preempting conflicting state laws. Idaho argued that because Congress passed EMTALA as a condition on Medicare funding under the spending clause, it cannot preempt the state’s criminal abortion law. While Prelogar protested that this issue was not fully briefed, multiple justices latched onto this theory. Justice Clarence Thomas opened this line of questioning, querying how a federal spending clause law that funds private parties, rather than states, could constrain state laws. He also asked if there were other instances when legislation enacted under Congress’ spending power had been used to preempt state criminal laws. In response, Prelogar emphasized that laws passed using spending clause authority are still binding federal laws under the supremacy clause. She then argued that the logical conclusion of finding that spending clause legislation, like EMTALA, does not preempt conflicting state law would be to prohibit hospitals in Idaho from participating in Medicare. This contradicts Idaho’s argument that the EMTALA requirements could not be enforced against Idaho hospitals.
Justices Neil Gorsuch and Barrett questioned whether federal spending clause legislation can preempt state laws that regulate medicine or ban abortion or gender-affirming care, respectively. Prelogar stated that Congress has broad authority to make policy under the spending clause, though constrained by federalism principles. Justice Kagan also asked about the potential impact of a ruling that spending clause legislation does not preempt conflicting state laws. Prelogar responded that such a ruling would have major consequences across federal spending programs, seriously interfering “with the ability of the federal government to get its benefit of the bargain” in major programs like Medicare.
Conclusion
The justices’ lines of questioning indicate that the Court is split on whether EMTALA’s stabilization requirements squarely preempt some narrow exceptions to state abortion bans. While certain justices staunchly sided with the government about the standard of care that EMTALA established for Medicare-participating emergency departments, others indicated readiness to limit the reach of EMTALA due to concerns about conscience objections, interests of the fetus, and the spending clause.
A holding for Idaho would mean that hospitals in states with restrictive abortion bans would no longer be allowed to provide abortions to stabilize patients with EMCs that do not fit within a state law’s exception. There are at least five states with abortion bans that do not include exceptions for the health of the pregnant person, including Arkansas, Idaho, Mississippi, Oklahoma, and South Dakota. A holding for Idaho would be devastating for pregnant people and emergency physicians in these states. It would likely increase the number of pregnant patients transferred to other states for care and exacerbate the chilling effect on the practice of emergency medicine in line with standards of care — resulting in the exact sort of patient dumping that EMTALA sought to prohibit. The interpretation of the “unborn child” language in EMTALA advanced by certain justices would likely also establish a harmful precedent that legitimizes “fetal personhood,” creating a foothold for policymakers seeking to advance legislation that further constrains the autonomy of pregnant persons and harms their health.
We anticipate that the Court will issue decisions on this case and Alliance for Hippocratic Medicine by no later than early July. Both holdings could have grave implications for individuals’ autonomy, health, and well-being, as well as access to abortion.
