Bonus 60: EMTALA, Abortion, and the Court

The justices will soon have to resolve if (and when) federal law allows emergency room doctors to perform otherwise unlawful abortions—with implications that could go well beyond reproductive rights

Welcome back to “One First,” a twice-weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. Usually, the Thursday issue is reserved for bonus content for paid subscribers, as opposed to the free content that comes out every Monday. But it seemed worth departing from that norm given the confluence of pending emergency applications from Idaho and a Fifth Circuit ruling from Tuesday, both of which turn on the relationship between state abortion bans and the federal Emergency Medical Treatment and Labor Act (EMTALA). As I explain in the post that follows, not only does the Fifth Circuit’s ruling (that EMTALA does not authorize abortions that are otherwise unlawful under Texas law) effectively force the Supreme Court to take up the question, but its reasoning has (in my view, ominous) implications not just in abortion cases, but in contexts that could go far beyond abortion.

I hope that you’ll consider subscribing (or becoming a paid subscriber) if you aren’t/haven’t already, but either way, read on.

I. EMTALA

Let’s start at the beginning. In 1986, Congress enacted EMTALA (em-TAHL-uh) at least partly in response to concerns that emergency rooms in certain areas of the country were turning away poor or otherwise uninsured patients. The basic goal of the statute was to create uniform national treatment minimums (for anyone and everyone) by tying its rules to a program in which virtually every hospital participates.

To that end, hospitals with emergency departments that receive federal Medicare funds (which is just about all of them) are required, as a condition of receiving those funds, to screen and stabilize any patient presenting an “emergency medical condition,” regardless of the patient’s ability to pay for stabilizing treatment. (There are complicated rules about when those patients can/must be transferred to another facility with superior ability to treat the underlying condition, but I’m going to skip over those because they’re not central to the current dispute, and trying to describe them accurately would likely only distract from what is already a complicated topic.)

As relevant here, Congress in EMTALA defined “emergency medical condition” as:

a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

Critically, EMTALA does not create or otherwise mandate specific federal standards of care. It merely requires medical providers, in cases in which it applies, to provide services that are consistent with the relevant professional standards (which, by tradition, are defined by state medical boards). But the clear mandate of the statute is “stabilizing treatment.” And to give that mandate teeth, the statute has multiple enforcement mechanisms—including civil fines from the federal government and private damages suits by patients treated (or not treated) in violation of the statute. In other words, Congress intended EMTALA not just as paper protection for patients, but as a meaningful substantive requirement for providers—to stabilize emergency medical conditions first based on prevailing (state-defined) medical standards, and to worry about the paperwork later.

As we’ll come back to, the statute addresses its relationship with state and local laws through an express (if caveated) preemption provision. Under 42 U.S.C. § 1395dd(f), “The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” In other words, EMTALA can have preemptive effect, as long as the conflict is “direct” (but not necessarily “explicit”).

II. The Conflict With State Abortion Bans

In light of the Supreme Court’s June 2022 ruling in Dobbs, a number of state abortion bans either went back into effect or were adopted, several with exceptionally narrow medical exceptions that permit abortions only when they are necessary to save the life of the pregnant woman.

Idaho’s exception, for instance, applies only if “[t]he physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.” And Texas’s applies only if “in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”

These bans don’t just prohibit abortions except in narrow medically necessary circumstances; they impose incredibly harsh penalties on doctors who perform abortions that fall outside of their medical exceptions. In both states, such doctors face ruinous civil and/or criminal liability in such cases—where the exceptions are affirmative defenses to prosecution (Idaho has since amended its ban to make clear that the exception is really an exception to the definition of the crime, not an affirmative defense thereto, although it’s not clear how big a difference that is in practice). Thus, even a doctor who is confident that an abortion meets the narrow statutory requirements still faces the risk of being prosecuted and having to bet his liberty on whether he was right. Nor is this concern academic; Texas Attorney General Ken Paxton has publicly threatened doctors with prosecution for performing abortions even in cases in which such a procedure would be consistent with a judicial restraining order.

And, tellingly, a recent lawsuit in Texas seeking to obtain clarification from the state supreme court as to exactly where the line is between an abortion that is allowed and one that is not (to mitigate the vagueness concern) produced a ruling that … did not clarify things.

This is where the conflict arises, because as the above definition hopefully makes clear, EMTALA’s text certainly appears to require stabilization of “emergency medical conditions” even in at least some cases where those conditions are, objectively, not (yet) life-threatening. Put another way, a pregnancy could trigger EMTALA both before it threatens the woman’s life (if the life-threatening harm is “expected” but not “immediate”) and in circumstances in which it risks potentially serious “immediate” injury to the pregnant woman, but not death. (One example of the former might be an ectopic pregnancy, where a fertilized egg implants in the fallopian tubes or somewhere else outside the womb; such a pregnancy is non-viable, and is not immediately life-threatening, but it will usually, if not always, become life-threatening as it gestates. This may be why, well after the two lawsuits described below were filed, both the Idaho and Texas legislatures both tried to specifically clarify that ectopic pregnancies fall *within* their medical exceptions.) There is, thus, an apparent conflict between what EMTALA appears to require and what at least some of these state bans prohibit—a gap that is exacerbated, both practically and formally, by the vagueness of the medical exceptions to those state bans (and the consequences to doctors who, even in good faith, transgress them).

The Biden administration sought to fill this gap, issuing “guidance” two weeks after Dobbs that purported to reaffirm the circumstances in which qualifying emergency rooms were still required to provide services under EMTALA in states in which those services were now unlawful. Specifically, the guidance provides that:

The determination of an emergency medical condition is the responsibility of the examining physician or other qualified medical personnel. An emergency medical condition may include a condition that is likely or certain to become emergent without stabilizing treatment. Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.

Thus, according to the Biden administration guidance,

If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.

In other words, the Biden administration took the position that, so long as a doctor performs an abortion that is necessary, in their view, to stabilize an “emergency medical condition” under EMTALA, any state law prohibitions on (or consequences for) that procedure are preempted under the Supremacy Clause of the Constitution, and thus unenforceable.

III. The Litigation

What followed next were two distinct lawsuits. The first, filed by Texas just three days after the HHS guidance was released, challenged that guidance as exceeding the Department of Health and Human Services’ statutory authority under EMTALA. (Texas didn’t file its suit in D.C. or in Austin, but in Lubbock—which helped ensure that the suit was assigned to Judge Hendrix). The second, by the Department of Justice against Idaho, was filed in August 2022 in Boise, and argued that the medical exception to Idaho’s abortion ban was narrower than (and, thus, preempted by) what EMTALA requires.

In Idaho, the district court sided with the federal government, concluding that there is a clear conflict between EMTALA and Idaho’s abortion ban. As Judge Winmill wrote:

EMTALA is thus broader than the affirmative defense on two levels. First, it demands abortion care to prevent injuries that are more wide-ranging than death. Second, and more significantly, it calls for stabilizing treatment, which of course may include abortion care—when harm is probable, when the patient could “reasonably be expected” to suffer injury. In contrast, to qualify for the affirmative defense, the patient’s death must be imminent or certain absent an abortion. It is not enough, as the Legislature has argued, for a condition to be life-threatening, which suggests only the possibility of death.

Judge Winmill thus issued a preliminary injunction barring enforcement of Idaho’s ban insofar as it prohibits doctors from performing abortions that are necessary to comply with EMTALA.

Idaho asked the Ninth Circuit to stay that injunction pending appeal. Although a three-judge panel initially granted the stay, the en banc Ninth Circuit subsequently vacated the stay—and set the appeal for expedited briefing and argument, which is currently scheduled for January 23. Idaho (and the Speaker of the Idaho House of Representatives), represented in part by the Alliance Defending Freedom, next asked the Supreme Court to stay the injunction pending that appeal. Even though those applications were filed in late November(!), the Supreme Court has yet to rule on them. (Merits aside, I’m hard-pressed to see how Idaho is irreparably harmed by not being able to prosecute doctors who perform abortions in contexts in which they are providing stabilizing treatment for an emergency medical condition under EMTALA.)

In Texas’s lawsuit challenging the Biden administration guidance, the district court sided with Texas, and, on Tuesday, the Fifth Circuit affirmed. After finding no procedural obstacles to Texas’s challenge to the guidance,¹ the court of appeals based its substantive reading of EMTALA on three (highly contestable) conclusions: First, that the statute creates a dual duty to both the pregnant woman and the “unborn child”; second, that it requires “stabilizing treatment” in general, but not any specific stabilizing treatment (e.g., the one with the highest likelihood of success); and third, that doctors should balance their “dual” stabilization obligations under EMTALA by reference to state law. In other words, EMTALA doesn’t preempt Texas’s abortion ban because it requires the doctor to account for the unborn fetus as well. Even assuming that EMTALA can fairly be read this way (and, in my view, it can’t), such “balancing” should obviously come out only one way in a case (like an ectopic pregnancy) in which the fetus is not viable. And yet, according to the Fifth Circuit, the doctor in such a case is still bound by state law—which means refusing to provide the only available “stabilizing” treatment until the pregnant woman’s condition becomes sufficiently life-threatening to fall within the state law exception. And even if one wanted to interpret the Texas exception to apply as soon as it’s clear that a condition will eventually become life-threatening (but see the Texas Supreme Court’s ruling in Cox), that still doesn’t account for cases in which the pregnancy poses serious but not life-threatening risk to the health of the pregnant woman—or where the pregnancy might still be viable.

Forgive me, but this is all just nuts. If EMTALA stands for anything, it stands for the idea that emergency room doctors should not have to call a lawyer before deciding if a patient’s condition is sufficiently serious to require the type of stabilizing treatment that federal law demands. The point is not to “transform [emergency rooms] into abortion clinics,” (as ADF has claimed); it’s to recognize the small but significant subset of pregnancies that end up jeopardizing the health of the pregnant woman—and the reality that doctors will often need to perform abortions to remove that jeopardy both in cases in which the fetus isn’t viable and some in which it is. After all, EMTALA applies only to patients who already have an “emergency medical condition.” The typical pregnancy (to which these state abortion bans still have full effect) is anything but.

And even if your reaction to all of this is to shrug your shoulders and say “abortion is unique,” the Fifth Circuit’s analysis of the relationship between EMTALA’s stabilization requirement and state law is hardly limited in its terms to abortion. By the majority’s “logic,” EMTALA doesn’t preempt any state law limit on the types of procedures doctors are allowed (indeed, required) to perform to stabilize emergent patients, since doctors can still “balance” their federal obligation to stabilize their patient with whatever state law prohibits them from doing to accomplish that goal. By that reading, the only way a state could actually pass a law preempted by EMTALA would be to prohibit stabilizing treatments per se (as opposed to prohibiting what, for some conditions, will be the only stabilizing treatment with any chance of success).

IV. The Broader Implications

Given the radically different readings of EMTALA reflected in the Idaho and Texas cases, it seems obvious that the Supreme Court will eventually have to weigh in on the subject—and will therefore have a second major abortion-related dispute to resolve this year, in addition to the mifepristone case in which it has already granted certiorari. And its answer to the question about what EMTALA does and does not require will, quite obviously, have significant ramifications in those states with strict anti-abortion laws. After all, imagine a state abortion ban with no medical exception. Under the Fifth Circuit’s analysis, EMTALA arguably still would not require (or even allow) a doctor to perform an abortion that is necessary to save the life of the pregnant woman. Maybe there’d be an argument that the pregnant woman in that scenario would have a constitutional right to life-saving medical care, but even having to litigate that question would be a legal, ethical, and moral nightmare.

But it seems worth emphasizing just how significant the Fifth Circuit’s interpretation of EMTALA is, and could be, beyond the context of abortion. Taken to its limit, the Fifth Circuit’s ruling would provide carte blanche for states to adopt an array of limits on medical treatment under the guise of prohibiting particular standards of care. Imagine, for instance, a state adopting a law barring the use of any medical procedures developed through research involving stem cells. Or barring treatments for gender dysphoria. Or otherwise barring classes of medical services in ways that are not related to the professional judgment of medical professionals. Under the Fifth Circuit’s remarkably narrow reading of EMTALA, it’s hard to see how an emergency room doctor would be authorized to treat emergent patients covered by any of those restrictions. There may be other legal objections to those statutes; the key for present purposes is that they’d have to be litigated one at a time; EMTALA wouldn’t provide a blanket requirement of stabilizing treatment in any or all of those cases.

Much like the ramifications of Judge Kacsmaryk’s mifepristone ruling for drug approval processes more generally, then, the EMTALA cases drive home just how much potential damage state legislatures (and state and federal courts) could inflict upon medical care just in the name of scoring political points relating to abortion. That’s not a legal observation, of course; EMTALA only preempts what it preempts. But it’s a suggestion even to those who are more opposed to abortion than I am that a medical exception to state abortion bans that parallels EMTALA (which is what Judge Winmill’s injunction in Idaho effectively does to Idaho’s ban) may be a small price to pay to ensure that doctors are able to treat all patients in all cases in ways that reflect their best medical judgment—and not any one interest group’s religious or cultural preferences.

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We’ll be back Monday with a regular issue about the Court. Until then, thanks for reading; I hope you have a great weekend!

1. In the interests of not further complicating this post, I’ll leave for another time the Fifth Circuit’s explanation of why Texas gets to challenge the “guidance” in the first place. Suffice it to say, it leaves a fair amount to be desired.