In a unanimous opinion yesterday, a Fifth Circuit panel soundly ruled (in Texas v. Becerra) that the U.S. Department of Health and Human Services unlawfully interpreted the federal law known as EMTALA to preempt narrower state-law definitions of the emergency medical conditions in which abortion is allowable and to require doctors to perform abortions in other circumstances.
The ruling has generated some wildly confusing headlines seemingly scripted for the media by the abortion industry (pardon me for positing a sharp distinction between the two), such as “Appeals court rules Texas can ban emergency abortions in spite of federal guidance” (NBC News) and “Texas can ban emergency abortions despite federal guidance, court rules” (Reuters). So let me try to set things straight:
1. Congress enacted EMTALA—the Emergency Medical Treatment and Labor Act—to prevent hospitals from “dumping” costly patients on other facilities. As HHS explains, 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 EMCs [emergency medical conditions].” (Emphasis added.)
EMTALA, in other words, sets funding restrictions on hospitals that choose to receive federal funds. It does not establish a general federal obligation, independent of acceptance of funding, to treat emergency medical conditions.
2. In a guidance letter issued in the aftermath of the Dobbs ruling, HHS Secretary Xavier Becerra broadly advised “health care providers” that EMTALA “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.” (Emphasis added.) Becerra asserted:
[If] a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, 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. And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.
3. Perhaps I’m missing something, but it seems to me that a proper understanding of EMTALA as merely setting funding conditions suffices to establish that Becerra’s guidance is unlawful.
To recast for Texas what I wrote back in August 2022 with respect to an EMTALA case in Idaho:
If Texas’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition,” a Medicare-participating hospital in Texas might theoretically encounter a situation in which it cannot comply with EMTALA’s funding restriction without violating Texas law. But that doesn’t mean that Texas 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 a Texas hospital believes that it can’t comply with both Texas 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 the Biden administration is asserting.
In other words, the Biden administration’s proper recourse, if it believes that a Medicare-participating hospital in Texas 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.
But Texas, I gather, did not make this argument, perhaps because it prefers to win on grounds that don’t risk putting its hospitals in a difficult situation. (If my take on this point is mistaken, I would welcome correction.)
4. The Fifth Circuit found sound alternative reasons that HHS’s guidance letter “exceeds” EMTALA. EMTALA “does not govern the practice of medicine,” but instead leaves that “to be governed by the states.” (Slip op. at 17-20.)
Further, EMTALA does not preempt state law except in the event of a direct conflict. But Texas law “does not directly conflict with EMTALA.” EMTALA “imposes obligations on physicians with respect to both the pregnant woman and her unborn child,” and Texas law allows abortion “where there is a life-threatening condition that places the female at risk of death or ‘substantial impairment of a major bodily function’ and the physician provides the ‘best opportunity for the unborn child to survive’ unless that would create a greater risk for the pregnant female’s death or a ‘serious risk of substantial impairment of a major bodily function of the pregnant female.’” In short, “Texas law does not stand in the way of providing stabilizing treatment for a pregnant woman or the unborn child.” (Pp. 20-23.)
HHS also violated administrative-law principles by failing to conduct notice-and-comment rulemaking before issuing its guidance. (Pp. 23-24.)