As expected, federal district judge B. Lynn Winmill ruled yesterday that Idaho’s abortion law, which goes into effect today, is preempted by the federal Emergency Medical Treatment and Labor Act (EMTALA) to the limited extent that the law’s life-of-the-mother provision is narrower than EMTALA’s definition of “emergency medical condition.” Judge Winmill granted the United States a preliminary injunction that prevents Idaho from enforcing its law against “medical care required” by EMTALA: namely, care that “is necessary to avoid (i) ‘placing the health of’ a pregnant patient ‘in serious jeopardy’; (ii) a ‘serious impairment to bodily functions’ of the pregnant patient; or (iii) a ‘serious dysfunction of any bodily organ or part’ of the pregnant patient.”
Some observations:
1. I argued in this post (see point 4 in particular) that because EMTALA merely imposes a funding restriction on hospitals that choose to take part in Medicare, Idaho’s law doesn’t in fact conflict with EMTALA. It’s not clear from Judge Winmill’s opinion whether Idaho made this argument. In any event, Winmill doesn’t address or answer it. He instead posits that the conflict exists. In his view, “all this case is about” is that “the [Constitution’s] Supremacy Clause says state law must yield to federal law.”
2. Winmill’s ruling conflicts in one large respect with Judge Hendrix’s ruling the previous day that enjoined the Biden administration from enforcing its EMTALA guidance against Texas. Whereas Judge Hendrix read EMTALA as “provid[ing] no roadmap for doctors when their duty to a pregnant woman and her unborn child may conflict,” Winmill erases a doctor’s EMTALA duty to the unborn child in such a conflict.
3. The life-of-the-mother provision in the Idaho law, as Winmill construes it, is different in two significant respects from the comparable provision in Texas law.
First, it is much narrower: it applies only “if the 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.” Rather than allow state courts and state officials to determine how capacious this language is, Winmill asserts both that it means that “the patient’s death must be imminent or certain absent an abortion” and that “its scope is tremendously ambiguous.”
Second, Winmill places a lot of weight on the fact that the Idaho provision is structured as an affirmative defense rather than as an outright exclusion from the law’s coverage. By his account, this means that “physicians will have to accept [the] hardship [of enduring criminal prosecution] every time they perform an abortion.” But would Winmill really say the same of Idaho’s separate affirmative defense in the case of rape or incest? It seems, rather, that the excessive “deterrent effect” that Winmill is concerned about comes from the “tremendous uncertainty” that he declines to allow Idaho officials to eliminate through interpretation and enforcement policy.
4. I wonder if Idaho might decide not to bother with an appeal—especially since an appeal would be to the Ninth Circuit—and instead undertake to show that in practice the conflict that Winmill posits is much more hypothetical than real.