Supreme Court to decide if states can ban emergency abortions
Can a state prevent pregnant women from receiving the essential emergency medical treatment that federal law guarantees to all Americans?
This case concerns whether a State can prevent pregnant women from receiving the essential emergency medical treatment that federal law guarantees to all Americans.
Outline
Introduction
On April 24, the consolidated cases Idaho v. United States and Moyle v. United States will be heard at the U.S. Supreme Court. “This case concerns whether a State can prevent pregnant women from receiving the essential emergency medical treatment that federal law guarantees to all Americans” under the Emergency Medical Treatment and Active Labor Act (EMTALA). [1]
As enacted, Idaho’s criminal ban on emergency abortions is in conflict with the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law passed in 1986. “When federal law conflicts with a state’s law, the Constitution provides that the federal law ‘shall be the supreme Law of the Land’ — and thus the state law is ‘preempted.’ EMTALA also contains a provision stating that state and local laws must give way ‘to the extent that the [state law] directly conflicts with a requirement of this section.’” [34] Because Idaho law conflicts with EMTALA - which offers federal protections for patients who require abortions for medical emergencies as defined by the law - Idaho has petitioned the Supreme Court of the United States (SCOTUS) to effectively nullify these protections. A ruling in Idaho’s favor will open the door for states to ban all abortions— even those necessary to save the life of the pregnant person.
“EMTALA’s promise is limited but profound: No one who comes to an emergency room in need of emergency medical care should be denied the treatment required to stabilize her condition. For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy. In those circumstances, EMTALA requires participating hospitals to offer such care—yet Idaho law forbids it. “ [2] Therefore, argues the U.S. Department of Justice, EMTALA “preempts state laws like [Idaho’s law, Section 18-622] to the extent they prohibit the essential medical care required by federal law.” [2]
The U.S. Supreme Court will ultimately determine whether the lives and health of pregnant patients experiencing obstetric emergencies are protected by EMTALA. This latest foray by the Court “into the legality of state laws criminalizing abortions will force them to wrestle with a fundamental question — are pregnant women entitled to the full protection of the law?” [3]
Conflict with EMTALA
Two months after the June 2022 Dobbs decision overturning Roe v. Wade, Idaho’s strict abortion ban went into effect. On paper (though not in practice), most states that have banned abortion have health exceptions for abortions that are necessary to prevent “substantial and irreversible impairment of a major bodily function” (whatever that means). Idaho, however, is among a handful of states that have no health exceptions whatsoever. Idaho’s abortion ban, therefore, is in direct conflict with a federal law called the Emergency Medical Treatment and Active Labor Act.
The Emergency Medical Treatment and Active Labor Act, henceforth referred to as EMTALA, “requires hospitals with emergency departments” that receive federal Medicare funds “to provide a medical screening examination to any individual who comes to the emergency department and requests such an examination, and prohibits hospitals with emergency departments from refusing to examine or treat individuals with an emergency medical condition.” [4] “The provisions of EMTALA apply to all individuals (not just Medicare beneficiaries) who attempt to gain access to a hospital for emergency care.” [5] Hospitals with dedicated emergency departments that receive federal Medicare funds are required to take certain measures, including but not limited to “[providing] necessary stabilizing treatment for emergency medical conditions and labor within the hospital’s capability and capacity.” [6]
“At the urging of physicians, the Congress that enacted EMTALA in 1986 chose to define the ‘stabilizing’ treatments required in certain medical emergencies by incorporating clinical guidelines, rather than by attempting to list procedures [i.e. abortions, gallbladder removal, etc.]. In 1986, terminating a pregnancy was a permitted medical treatment not only to save a patient’s life, but also to prevent substantial risks to her health. Even states that banned third-trimester abortions exempted abortion ‘to preserve the life or health of the woman.’ E.g., Wisc. Stat. § 940.15(2)-(3) (1985) (emphasis added). It is no surprise, therefore, that since EMTALA’s enactment, practitioners have acknowledged their statutory obligation to provide abortion care in those rare emergencies in which terminating a pregnancy is the necessary ‘stabilizing’ treatment. That is how ‘most people * * * would have understood’ the statutory language when it was enacted. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019).” [7]
“Because EMTALA sometimes requires physicians to perform a termination that would fit the definition of an abortion under Idaho law, the criminal ban on abortions in Idaho Code § 18-622 creates a conflict between the state and federal obligations.” [23] “In 1986, Congress foresaw this dilemma and preempted laws like Idaho Code § 18-622 precisely so that health care providers would not be forced to choose between [abidingby state or federal law]. Specifically, EMTALA provides that ‘any State or local law requirement’ is preempted ‘to the extent that the requirement directly conflicts with a requirement of this section.’ 42 U.S.C. § 1395dd(f).” [23]
“A state statute directly conflicts with federal law in either of two cases: first, if ‘compliance with both federal and state regulations is a physical impossibility,’ or second, if the state law is ‘an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” [23]
In the case of Idaho, “both kinds of direct conflict exist. First, compliance both with EMTALA and Idaho Code § 18- 622 is impossible: one statute requires stabilizing care to be performed, even if it involves termination of a pregnancy, while the other prohibits many terminations that are necessary to stabilize a patient’s health… Second, Idaho Code § 18-622 is an obstacle to EMTALA’s purpose ‘to ensure that patients, particularly the indigent and underinsured, receive adequate emergency medical care.’” [23]
EMTALA and pregnancy complications
“Pregnant people can face a range of conditions that threaten their lives or that seriously threaten their health. Emergency abortion care may be [the] necessary stabilizing treatment in those instances.” [8] For example, some patients suffer from placenta accreta, “an uncommon but serious pregnancy complication in which the placenta grows too deeply into the uterine wall and can lead to extreme bleeding after birth,” which can lead to septic shock and can require limb amputation. [9] Pregnancy can also be complicated by acute limb ischemia (ALI) and embolisms that can cause a person’s limb(s) to turn black and require amputation. [10] [11] Other “pregnancy complications such as placental abruption, bleeding from placenta previa, preeclampsia or eclampsia, chorioamnionitis, and cardiac or renal conditions may be so severe that an abortion is the only measure to preserve a patient’s health or save their life.” [12]
“Idaho’s law puts providers in an impossible position: if they provide stabilizing care, they could face criminal prosecution, but if they do not, they leave patients in crisis.” [13]
“In Idaho’s hospitals, healthcare providers today are confronted with a conflict between state and federal law: While [Idaho’s abortion ban] § 18-622 prohibits termination except to prevent the death of the mother, EMTALA requires providers to offer stabilizing care even when an emergency medical condition poses severe health risks short of death. This can and does occur with some pregnant patients who suffer an emergency that threatens severe consequences and for which the standard of care includes termination of the pregnancy.” [23]
“Today, those patients suffer as physicians’ best option is often to transfer the patients out of state—thereby delaying care and creating additional risks for patients. These delays can cause not only pain and suffering, but also more permanent effects such as organ failure, loss of reproductive organs, and other forms of disability.” [23]
Path to the Supreme Court
Because Idaho’s abortion ban criminalizes abortion healthcare to stabilize and preserve a patient’s health in tragic instances of serious pregnancy complications, the U.S. Department of Justice (DOJ) sued Idaho in August 2022, “to protect the rights of patients to access emergency medical care guaranteed by federal law (EMTALA).” [14]
Later that month, U.S. District Judge B. Lynn Winmill ruled in favor of the DOJ and issued a modest injunction prohibiting the criminal prosecution of Emergency Department physicians, at hospitals that receive federal Medicare funds, who perform emergency abortions to stabilize patients experiencing catastrophic pregnancy complications. [15] Winmill wrote, “At its core, the Supremacy Clause says state law must yield to federal law when it’s impossible to comply with both. And that’s all this case is about,” Winmill wrote in his order. “It’s not about the bygone constitutional right to an abortion. This Court is not grappling with that larger, more profound question. Rather, the Court is called upon to address a far more modest issue—whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation. It does.” [16]
Idaho appealed the ruling. A year later, “a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals in September (2023) agreed to let Idaho enforce its ban amid an appeal.” [17] However, in October 2023, after reviewing the panel's decision, the full 9th Circuit “reversed the panel's ruling, granting the [DOJ’s] request to block the Idaho law while the appeal proceeds.” [18]
Rather than wait for the appeals process to proceed, Idaho officials asked the U.S. Supreme Court, in November 2023, to temporarily halt Judge Winmill's injunction barring Idaho from criminally prosecuting Emergency Department physicians who perform emergency abortions to stabilize patients experiencing catastrophic pregnancy complications. [19] Over a month went by without a response from the Supreme Court. Then, following a ruling out of the U.S. Court of Appeals for the Fifth Circuit on a different EMTALA case on January 2, 2024, Idaho “sent the Supreme Court a copy of the Fifth Circuit opinion as supplemental authority, claiming that it ‘shows that the State of Idaho is likely to prevail on the merits of its appeal’ [against Judge Winmill's injunction]. As such, Idaho Acting Solicitor General Joshua Turner argued, the Fifth Circuit’s decision ‘underscores the appropriateness of granting’ Idaho’s stay request.” [20]
On January 5, 2024, the U.S. Supreme Court announced that it will consider the Idaho EMTALA case— and, in the process, the court lifted Judge Winmill’s injunction that protected Emergency Department physicians from prosecution in the state. [21] Immediately, Emergency Department physicians became “subject to the full extent of Idaho’s abortion ban, which carries penalties of jail time, fines and the loss of a medical license. Those doctors are also subject to Idaho’s civil law that allows immediate and extended family members to sue for up to $20,000 over an abortion procedure.” [22] Idaho hospitals are now transferring patients experiencing catastrophic pregnancy complications out of state unless a patient’s death is imminent. [23] The fact that the U.S. Supreme Court allowed Idaho to fully enforce its ban is a worrisome indicator that SCOTUS is likely to rule in favor of Idaho.
UPDATE (06-27-2024): As noted two paragraphs above, Idaho wished to bypass the standard appeals process of this case. Idaho therefore asked the Supreme Court to intervene. Today, the Supreme Court sent the case back down to the 9th Circuit Court for the standard appeals process to continue as it would have had the Supreme Court not briefly intervened. This means that this case picks up where it left off, in the 9th Circuit. As such, the lower court injunction that temporarily barred Idaho from criminally prosecuting Emergency Department physicians, at hospitals that receive federal Medicare funds, who perform emergency abortions to stabilize patients experiencing catastrophic pregnancy complications, has been reinstated.
What’s at stake?
The immediate question of this case is “[w]hether the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd, preempts Idaho law in the narrow but important circumstance where terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health but the State prohibits an emergency-room physician from providing that care.” [24] The medical community has “long understood that EMTALA’s stabilization requirement encompasses pregnancy termination where necessary to stabilize an emergency medical condition. The largest hospital system in Idaho has emphasized that the contrary suggestion ‘would stun the vast majority of medical providers.’ St. Luke’s Amicus Br. 8 n.6. The physician declarations in the [Supreme Court] record likewise recognize that pregnancy termination is in some circumstances ‘required under EMTALA.’ J.A. 617; see, e.g., J.A. 607, 612.” [25]
“This case concerns whether a State can prevent pregnant women from receiving the essential emergency medical treatment that federal law guarantees to all Americans. Under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd et seq., a hospital that participates in Medicare must offer stabilizing treatment to any patient with an emergency condition that seriously threatens her life or health. 42 U.S.C. 1395dd(b)(1). When a pregnancy is healthy, EMTALA has no application. But pregnant women can suffer dangerous conditions that require immediate medical treatment to prevent death or serious injury, including organ failure or loss of fertility. And in some tragic cases, the required stabilizing care—the only treatment that can save the woman’s life or prevent grave harm to her health—involves terminating the pregnancy.” [26]
“Under those narrow but critically important circumstances, a straightforward application of EMTALA’s text requires the hospital to offer that essential medical care. The Department of Health and Human Services (HHS) has maintained and enforced that interpretation across the administrations of George W. Bush, Barack Obama, Donald Trump, and Joe Biden. And the courts, the medical community, and Congress have long shared the same understanding.” [27]
“Before this Court’s decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), there was little occasion to consider how EMTALA interacts with state abortion laws because States generally could not prohibit termination of a pregnancy in the circumstances where EMTALA would require that care.” [28] Since Dobbs, “a handful of States, including Idaho, have prohibited such care even in the emergency circumstances where EMTALA requires it.” [29]
When Dobbs came down, “within minutes it became manifestly clear that… states willing to privilege fetal life would go to any and all lengths to ensure that actual patients’ care, comfort, informed consent, and very survival would be subordinate.” [30] “Every unborn fetus is the priority over the pregnant person carrying it and must be carried to term at all costs. So goes the moral calculus of the death-panel judges who now determine how to weigh the competing interests between real, existing human life and a state’s dogmatic fixation with a fetus that, by definition, must be seraphically innocent.” [31]
What is at stake is the equality, health, and lives of pregnant human beings, not just in Idaho but across the US. The stakes could not be higher.
Equal protection under the law?
The Supreme Court’s latest “foray into the legality of state laws criminalizing abortions” forces all of us “to wrestle with a fundamental question — are pregnant women entitled to the full protection of the law?” [32]
As Jessica Levinson reminds us, “Women used to be second-class citizens. We were deprived not just of the right to vote, but until very recently, we were deprived of the right to do basic things such as open bank accounts. It wasn’t until 1993, for example, that we reached the point where every state had outlawed spousal rape. Now, less than two years after the Supreme Court stripped abortion rights from the U.S. Constitution, it stands poised to put women’s ability to obtain medical care at further risk. This time, as the court addresses questions related to restrictive state abortion laws, it will focus on a federal law that entitles all people to emergency medical care... The specific legal question for the justices is whether, under this federal law, pregnant women facing true medical emergencies may obtain abortions even in states that would otherwise outlaw the procedure.”
“If we need a federal law to protect people's ability to obtain emergency medical treatment, then the court should conclude that the people covered by the law include pregnant women. The opposite conclusion would make women less than full citizens — again.” [33]
Citations
[1] Brief of respondent United States. March 21, 2024. (P. 2). https://www.supremecourt.gov/DocketPDF/23/23-726/305680/20240321205817124_23-726bsUnitedStates.pdf
[2] Ibid. 1, p. 8
[3] Levinson, J. (2024, January 9). The Supreme Court’s response to Idaho’s abortion ban is already concerning. MSNBC. https://www.msnbc.com/opinion/msnbc-opinion/idaho-abortion-law-supreme-court-rcna132916
[4] EMTALA. Centers for Medicare & Medicaid Services. https://www.cms.gov/medicare/provider-enrollment-and-certification/certificationandcomplianc/downloads/emtala.pdf
[5] Ibid. 4
[6] Ibid. 4
[7] Brief amici curiae of Legal Scholars. March 28, 2024. (P. 2). https://www.supremecourt.gov/DocketPDF/23/23-726/306163/20240328144635546_23-726%20and%2023-727%20FINAL%20Amici%20Brief%20rtf.pdf
[8] Idaho v. United States and moyle v. united states: The Supreme Court will decide if states can block pregnant people from getting emergency abortion care. National Women’s Law Center. (2024, March 4). https://nwlc.org/resource/idaho-v-united-states-and-moyle-v-united-states-the-supreme-court-will-decide-if-states-can-block-pregnant-people-from-getting-emergency-abortion-care/
[9] Medaris, A. (2020, February 21). A mom had both her legs amputated after developing the same pregnancy complication as Kim Kardashian. Business Insider. https://www.businessinsider.com/kim-kardashian-placenta-accreta-mom-had-feet-amputated-almost-died-2020-2
[10] Govsyeyev , N., Malgor , R. D., Hoffman, C., Sturman, E., Siada, S., Al-Musawi , M., Malgor, E. A., Jacobs, D. L., & Nehler, M. (2020, November). A systematic review of diagnosis and treatment of acute limb ischemia during pregnancy and postpartum period. Journal of vascular surgery. https://pubmed.ncbi.nlm.nih.gov/32442613/
[11] Simmons-Duffin, S. (2023, November 15). 20 women are now suing Texas, saying state abortion laws endangered them. NPR. https://www.npr.org/sections/health-shots/2023/11/15/1213188342/20-women-sue-texas-over-abortion-laws
[12] Increasing access to abortion. ACOG. (n.d.). https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2020/12/increasing-access-to-abortion
[13] Idaho v. United States and moyle v. united states: The Supreme Court will decide if states can block pregnant people from getting emergency abortion care. National Women’s Law Center. (2024, March 4). https://nwlc.org/resource/idaho-v-united-states-and-moyle-v-united-states-the-supreme-court-will-decide-if-states-can-block-pregnant-people-from-getting-emergency-abortion-care/
[14] Justice Department sues Idaho to protect Reproductive Rights. Office of Public Affairs | Justice Department Sues Idaho to Protect Reproductive Rights | United States Department of Justice. (2022, August 2). https://www.justice.gov/opa/pr/justice-department-sues-idaho-protect-reproductive-rights
[15] Dalvin, M. (2022, September 16). Judge sides with DOJ, issues “modest” preliminary injunction on Idaho Abortion Law in emergencies. Idaho Reports. https://blog.idahoreports.idahoptv.org/2022/08/24/judge-sides-with-doj-issues-partial-injunction-on-idaho-abortion-law/
[16] Ibid. 15
[17] Kruzel, J. (2024, January 5). US Supreme Court to rule on Idaho’s strict abortion ban in medical ... https://www.reuters.com/legal/us-supreme-court-will-hear-fight-over-idahos-near-total-abortion-ban-2024-01-05/?ref=upstract.com
[18] Ibid. 17
[19] Kruzel, J. (2023, November 27). Idaho asks US Supreme Court to allow near-total abortion ban | Reuters. Reuters. https://www.reuters.com/legal/idaho-asks-us-supreme-court-allow-near-total-abortion-ban-2023-11-27/
[20] Geidner, C. (2024b, January 4). Idaho pushes scotus for action on er abortion care shadow docket case. Law Dork. https://www.lawdork.com/p/idaho-pushes-scotus-emtala-case
[21] Moseley-Morris, K. (2024, January 5). U.S. Supreme Court agrees to hear Idaho case on emergency room abortions • idaho capital sun. Idaho Capital Sun. https://idahocapitalsun.com/2024/01/05/u-s-supreme-court-agrees-to-hear-idaho-case-on-emergency-room-abortions/
[22] Ibid. 21
[23] Brief amicus curiae of St. Luke’s Health System, Ltd.. March 14, 2024. (P. 14). https://www.supremecourt.gov/DocketPDF/23/23-726/303058/20240314104215197_23-726%2023-727%20bsac%20SLHS.pdf
[24] Brief of respondent United States. March 21, 2024. (P. i). https://www.supremecourt.gov/DocketPDF/23/23-726/305680/20240321205817124_23-726bsUnitedStates.pdf
[25] Ibid. 24, p. 19
[26] Ibid. 24, p. 2
[27] Ibid. 24, p. 3
[28] Ibid. 24, p. 3
[29] Ibid. 24, p. 3
[30] Lithwick, D., & Stern, M. J. (2024, January 9). Republican officials openly insult women nearly killed by abortion bans. Slate Magazine. https://slate.com/news-and-politics/2024/01/republican-abortion-bans-pregnant-women-deaths.html
[31] Ibid. 30
[32] Levinson, J. (2024, January 9). The Supreme Court’s response to Idaho’s abortion ban is already concerning. MSNBC. https://www.msnbc.com/opinion/msnbc-opinion/idaho-abortion-law-supreme-court-rcna132916
[33] Ibid. 32
[34] Millhiser, I. (2024b, April 9). The Supreme Court will decide if states can ban lifesaving abortions. Vox. https://www.vox.com/scotus/2024/4/9/24112845/supreme-court-abortion-emtala-moyle-united-states-idaho-life-health
Idiotic laws such as Idaho’s and other states must be challenged in court. If pregnant children, adolescents and adults are excluded from this right by federal law then yes indeed they are less than full legal citizens of the United States. Either the state owns the fetus or it does not. Either the state owns the pregnant person or it does not. We can only hope that this will be a big fat loss for all these loser states.