Yesterday the Biden administration sued the state of Idaho over its abortion law that will take effect on August 25. The Department of Justice’s complaint contends that Idaho’s law will conflict in some circumstances with the federal Emergency Medical Treatment and Labor Act (EMTALA). It asks that the federal district court rule that the Idaho law “is preempted and therefore invalid to the extent that it conflicts with EMTALA.”
In this post, I offer some observations on DOJ’s lawsuit. As I will explain, rather than purporting to displace state law, EMTALA imposes requirements on hospitals that choose to take part in Medicare. It’s a funding restriction. It would seem, therefore, that the Biden administration’s only proper legal recourse is to take enforcement action against any Medicare-participating hospital in Idaho that actually fails to comply with EMTALA or to undertake to terminate its Medicare agreements with Idaho hospitals.
1. Let’s start with EMTALA. As the Department of Health and Human Services explains, Congress enacted EMTALA to ensure public access to emergency services regardless of ability to pay. EMTALA “imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide … treatment for an emergency medical condition, including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with [emergency medical conditions].”
EMTALA defines the term “emergency medical condition” to mean:
(A) 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; or
(B) with respect to a pregnant woman who is having contractions—
(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or
(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.
2. Idaho’s abortion law provides life-of-the-mother and rape/incest exceptions. It’s the scope and nature of the life-of-the-mother exception that DOJ is challenging, so let’s spell it out.
Under Idaho’s law, it is an “affirmative defense to prosecution” that “a 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 that he “performed or attempted to perform the abortion in the manner that, in his good faith medical judgment and based on the facts known to the physician at the time, provided the best opportunity for the unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman.”
3. DOJ, as I understand it, objects to this exception on two grounds. First, the life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition.” As DOJ states in the opening paragraph of its complaint:
Crucially, “emergency medical conditions” under the statute include not just conditions that present risks to life but also those that place a patient’s “health” in “serious jeopardy” or risk “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.”
Second, DOJ complains that by “put[ting] the burden on the physician to prove an ‘affirmative defense’ at trial” (rather than requiring the prosecution to show that the abortion was not done to save the life of the mother), the Idaho law could lead a physician to “withhold care based on a well-founded fear of criminal prosecution” even when he in good faith determines that the life of the mother is at stake.
4. Let’s accept DOJ’s position that the Idaho law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition.” (I’m skeptical of its objection to the fact that the exception is cast as an affirmative defense, but we can pass over that for now, as my same points apply if DOJ is correct.) What follows from that?
If the Idaho law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition,” a Medicare-participating hospital in Idaho might theoretically encounter a situation in which it cannot comply with EMTALA’s funding restriction without violating the Idaho law. But that doesn’t mean that the Idaho law conflicts with EMTALA, as the straightforward (though, to be sure, costly) way for the hospital to prevent any conflict is to decline to participate in Medicare.
EMTALA itself provides (in subsection (f)) that it does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” No such direct conflict exists.
How strange it would be to think that a private party’s decision to accept federal funds subject to a funding restriction preempts a state law that makes it difficult or impossible for that party to comply with the funding restriction. If an Idaho hospital believes that it can’t comply with both Idaho law and the EMTALA condition on Medicare funding, then it should decline the Medicare funding. It can’t accept the funding and then contend that it is somehow exempt from state law. Yet that’s the very position that DOJ is asserting.
In other words, the Biden administration’s proper recourse, if it believes that a Medicare-participating hospital in Idaho won’t comply with EMTALA’s funding restriction, is to terminate its Medicare agreement with that hospital or to take enforcement action against the hospital if and when it fails to comply.
5. The Social Security Act, which includes Medicare and EMTALA, also makes clear that the federal government has no say in determining what proper medical treatment is for an “emergency medical condition” and that the scope of proper medical treatment is instead a matter for state regulators:
Nothing in this subchapter shall be construed 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 … or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.
So even if EMTALA purported to directly regulate hospitals (rather than to impose conditions on hospitals receiving Medicare funding), it wouldn’t preempt Idaho’s judgment that abortion is a medically unsound treatment except to save the life of the mother.
6. Even on DOJ’s theory, is there in fact any realistic prospect that the potential conflict between EMTALA’s funding restriction and Idaho’s law would actually arise? Is it impossible for an Idaho hospital to continue to take part in good faith in Medicare? Or is DOJ hypothesizing a farfetched scenario in a misdirected attack on Idaho’s law?
I will leave it to medical professionals to answer those questions. But I will note that far from being any sort of abortion mandate, EMTALA’s definition of “emergency medical condition” would generally require stabilizing treatment for both a pregnant woman and “her unborn child.”
DOJ contends that it can’t wait “to initiate federal enforcement actions directly against physicians or hospitals” because waiting “would likely have significant negative consequences on public health.” But it’s reasonable to suspect that DOJ’s real concern about waiting is that no occasion for a federal enforcement action would ever arise.