A federal law requires hospitals to provide abortions when necessary to prevent serious health consequences. The justices could neutralize that law.
Demonstrators participate in an abortion rights rally outside the Supreme Court as the Court hears oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine on March 26, 2024. Anna Moneymaker/Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Moyle v. United States should have been a very easy case.
A federal law, the Emergency Medical Treatment and Labor Act (EMTALA), requires nearly all hospitals to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” Though the law does not specifically mention abortions, EMTALA is written in capacious terms — requiring covered hospitals to perform an emergency abortion when that is the appropriate treatment to resolve a patient’s medical emergency.
And yet, last January, the Supreme Court effectively nullified EMTALA, at least for patients who require abortion. Moyle, which the Court will hear the last full week of April, asks whether this nullification should be made permanent.
The case involves a conflict between the federal law and Idaho’s unusually restrictive anti-abortion statute, which permits physicians to perform an abortion when “necessary to prevent the death of the pregnant woman,” but not when a patient’s pregnancy only threatens to disable or seriously harm them.
EMTALA, meanwhile, requires most hospitals to provide whatever care is necessary to stabilize a patient who is at risk of “serious impairment to bodily functions,” “serious dysfunction of any bodily organ or part,” or other nonfatal consequences that are defined as medical emergencies by EMTALA. So, for example, if a patient’s uterus could be destroyed, but she is likely to survive if untreated, EMTALA requires hospitals to perform an abortion if terminating the pregnancy would stabilize the patient’s medical condition.
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.”
So, again, Moyle should be an easy case, and a federal district court ruled in 2022 that Idaho’s abortion ban must give way to EMTALA when a pregnant patient has a medical emergency that must be treated with an abortion.
Last January, however, the Supreme Court temporarily blocked this district court’s order, reinstating Idaho’s sweeping abortion ban while the justices ponder the Moyle case. That’s a strong sign that, despite EMTALA’s clear text, the justices could permanently neutralize the federal law’s protections for people who must have an abortion to avoid catastrophic medical consequences. (No justice publicly dissented from this temporary order, but justices sometimes disagree with the Court’s orders but do not note their dissent.)
Moyle is a test of whether these justices will follow the text of a clearly drafted law
EMTALA is a reasonably straightforward statute. It only applies to hospitals with emergency rooms, and only to those hospitals that accept Medicare funds. That’s most hospitals because Medicare provides health coverage to Americans over the age of 65.
The primary purpose of this law is to ensure that hospitals provide emergency medical care to patients who may not be able to pay for it. But the law is also written in expansive terms. It states that “if any individual … comes to a hospital and the hospital determines that the individual has an emergency medical condition,” the hospital typically must “stabilize the medical condition.” (In limited circumstances, the hospital may transfer the patient to another facility.)
EMTALA also defines the term “emergency medical condition” to include not just life-threatening medical conditions, but also conditions that place a patient’s health in “serious jeopardy” or that threatens serious harm to a patient’s “bodily functions” or “any bodily organ or part.”
Faced with this fairly explicit text, Idaho’s lawyers (and a separate team of lawyers representing the state’s GOP legislature) offer several arguments to justify leaving its broad abortion ban in place.
One of their main arguments is that EMTALA should be read only to prohibit “turning away indigent patients with serious medical conditions.” The Justice Department agrees that preventing hospitals from turning away such patients was Congress’s prime motive when it enacted EMTALA in 1986. But the text of the statute does not support such a narrow reading of its effects.
Both the state’s brief and the state legislature’s brief also lean heavily into a provision of federal Medicare law which provides that EMTALA should not be read “to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.” They claim that this provision prevents EMTALA from being read to alter which medical procedures can legally be performed in Idaho.
But this argument also conflicts with the text of federal law. Even if the Court agrees that requiring doctors to perform medically necessary abortions constitutes “supervision or control over the practice of medicine,” the statutory provision Idaho points to only prohibits “any Federal officer or employee” from exercising such supervision.
No federal officer or employee — meaning, a member of the federal executive branch — has decreed that Idaho hospitals must provide emergency abortions. Rather, the Biden administration argues that Congress made this determination when it enacted EMTALA.
The anti-abortion briefs also point to several provisions of the EMTALA statute which require hospitals to offer stabilizing care to a pregnant patient’s “unborn child” if a medical emergency endangers the fetus’s life. They claim that reading the federal law to require emergency abortions would “put it at war with” its provisions protecting fetal life.
But this argument is also at odds with EMTALA’s text. The federal statute provides that a hospital meets its obligations under EMTALA if it “offers” a patient medically stabilizing treatment and “informs the individual (or a person acting on the individual’s behalf) of the risks and benefits” of that treatment.
Thus, when a pregnant patient faces a medical emergency that endangers both the patient and their fetus, the hospital’s obligation is to offer treatment that will stabilize both patients. And, in the tragic case where a patient is forced to choose between an abortion, which would stabilize their own condition, or a treatment which would save the fetus but leave the mother at risk, EMTALA requires the hospital to offer both treatments, and inform the patient of the terrible choice they must make.
And then the hospital must honor the patient’s choice, even if the state does not approve of it.
Idaho also wants the Supreme Court to fundamentally alter the balance of power between Congress and the states
Idaho’s two legal teams also make a pair of arguments that seek to weaken Congress in fundamental ways and to place novel new limits on the federal government’s ability to preempt state laws.
The first of these arguments is that EMTALA — or, at least, the Biden administration’s textualist reading of EMTALA — violates something called the “major questions doctrine.”
The major questions doctrine claims that Congress must “speak clearly” if it wishes to give a federal agency the power to decide a question of “vast ‘economic and political significance.’” This doctrine is not mentioned in the Constitution or in any federal law, and appears to have been made up entirely by Republican appointees to the Supreme Court.
Even if you accept this made-up doctrine as legitimate, however, it is not at all clear why it is relevant to the Moyle case. By its own terms, the major questions doctrine only applies when a federal agency claims the authority to decide an important policy question. But no federal agency — meaning, an agency within the Executive Branch — has made any policymaking decision of any kind in Moyle. Rather, the question is whether a law enacted by Congress requires Idaho hospitals to perform emergency abortions.
Idaho, in other words, is arguing that a made-up legal doctrine, which appears in no legal text and that was fabricated entirely by judges, should be read to limit Congress’s ability to decide important policy questions. If the Court agrees, that would be an extraordinary transfer of power from an elected Congress to an unelected judiciary.
The state’s strongest legal argument, meanwhile, turns on the fact that EMTALA’s obligations only apply to hospitals that accept federal Medicare funds.
The Supreme Court has long held that, when Congress spends money, it may impose conditions on the recipients of that money — including on state governments. So, for example, the Court held in South Dakota v. Dole (1987) that Congress may require states that accept federal highway funds to raise their drinking age to 21 (Congress thought that the roads would be safer if there were less underage drinking and driving).
In Moyle, however, the question is whether private hospitals that accept Medicare funds must perform emergency abortions. Idaho claims that, because it has not weighed in on whether to accept that funding, it has not consented to having its own state law overridden by EMTALA. And it argues that such consent is necessary for a federal spending program to override a state law.
Idaho actually does have some legal support for this argument. In Pennhurst State School & Hospital v. Halderman (1981), the Supreme Court said that a state’s decision to accept federal funds is “much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” So that does suggest that a state need not comply with “federally imposed conditions” if it did not “agree to comply” with them.
But the Justice Department also cites many Supreme Court cases holding that Congress preempted a state law when it enacted a federal spending program that does not provide grants to states. Thus, in Coventry Health Care v. Nevils (2017), the Court held that the federal government’s decision to offer its own employees health plans that violate Missouri law preempts that state law. And in Bennett v. Arkansas (1988), the Court held that federal Social Security law overrides an Arkansas law that allowed the state to seize an incarcerated person’s Social Security benefits.
Indeed, as recently as last year, the Court held in Health and Hospital Corporation v. Talevski (2023) that private plaintiffs may sue to enforce provisions of federal Medicaid law that impose obligations on institutions that accept Medicaid funds. Talevski rested on the proposition that conditions attached to federal grant programs are “laws” just like any other federal law, and thus can be enforced using the same mechanism individuals would use to enforce a different law.
So, while Pennhurst offers some legal support for Idaho’s claim that EMTALA cannot modify a state law without the state’s consent, there are myriad cases supporting the opposing proposition. A justice who is determined to deny emergency abortions to patients who need them could rely on Pennhurst to achieve that result, but such a decision risks undermining countless other acts of Congress that override state laws.
The Court’s decision in Moyle is likely to determine whether some women live or die
Theoretically, Idaho’s law permits abortions when necessary to save a patient’s life. Many other states with abortion bans have broader exemptions on the books, which theoretically permit an abortion when a patient faces serious health consequences that may not be life-threatening.
In practice, however, women in many states with strict abortion bans have struggled to obtain lifesaving or otherwise medically necessary care. In one case, a Texas woman with a nonviable pregnancy was told she had to wait to receive an abortion even though her body was discharging blood clots and a strange-smelling yellow liquid, Her doctors eventually agreed to induce labor after her vagina started to emit a dark, foul-smelling fluid.
This happened, moreover, despite the fact that Texas law permits abortions when a patient “has a life-threatening physical condition” or faces a “serious risk of substantial impairment of a major bodily function” that relates to their pregnancy.
Incidents like this are common because many state legal provisions permitting emergency abortions have never been interpreted by any court, or have been interpreted largely by Republican judges who are hostile to abortion. So hospital lawyers often cannot know in advance when their state’s courts will allow doctors to perform an abortion, and doctors who guess wrong risk very serious criminal charges.
If the Supreme Court reads EMTALA to say what it actually says in Moyle, that would relieve some of this uncertainty. It would mean that doctors or patients who cannot obtain a state court order permitting an emergency abortion could also seek such an order from federal court. It would also mean that, over time, a body of case law would develop establishing when federal law entitles someone experiencing a medical emergency to an abortion.
But all of that depends on whether these justices, a majority of whom voted to overrule Roe v. Wade, will set aside their personal opposition to abortion and read EMTALA to do what it actually says.
Sourse: vox.com
