When the U.S. Supreme Court takes a case about abortion, you can bet it will be one of the year’s biggest decisions. But in the wake of Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s abortion cases no longer address the egregiously mistaken Roe v. Wade decision. Instead, they address other doctrines concerning the state–federal relationship (such as administrative law and preemption). And while one such case the Supreme Court has accepted for review involves abortion — State of Idaho v. United States of America — its implications for that state–federal relationship stretch far more broadly.
The case concerns the federal Emergency Medical Treatment and Active Labor Act. Signed into law by President Reagan in 1986, EMTALA was enacted as part of the Medicare Act to prevent the then-common practice of “patient dumping” — hospitals turning away patients from emergency rooms.
EMTALA addressed this problem by requiring hospitals that accept Medicare dollars to screen patients in the ER for emergency medical conditions and provide stabilizing care within the staff and facilities available to the hospital. Since EMTALA was part of the Medicare Act, it does not dictate the particular treatments that must be provided, but rather looks to state law — the longstanding and primary regulator of medical practice — to set the standard of care. In fact, the only specific treatment EMTALA requires is when a woman presents to a hospital in active labor; in that situation, the hospital must deliver “the unborn child.”
Following President Joe Biden’s directive, the Department of Health and Human Services issued radical new guidance that, for the first time, found a specific medical procedure that EMTALA required: abortion. According to the administration, if a doctor thinks a woman in the ER needs an abortion as “stabilizing care,” then federal law requires the abortion. But the “stabilizing care” EMTALA requires is determined by what is available under state law. And Idaho’s law allows for abortions when the life of the mother is at risk. Both EMTALA and Idaho’s law seek to protect and save life.
The administration’s new interpretation turned everything on its head. Preposterously, the administration has somehow uncovered an abortion mandate in a law that protects “the unborn child” as a second patient. And its notion that EMTALA requires any specific procedure — let alone abortion — contradicts decades of judicial and agency interpretations. Indeed, the United States’ Medicare regulations have always limited care under EMTALA to what is allowed by physicians’ state-law licenses.
But based on its novel theory, the Biden administration filed a test case against Idaho, which had a life-affirming law set to go into effect after Roe was overturned. According to the administration, Idaho prohibited abortions that EMTALA would require as stabilizing care, so it was entitled to an order preventing Idaho from enforcing its law in the ER.
A federal trial court in Idaho granted that order. After a U.S. Court of Appeals for the Ninth Circuit panel overruled that decision in a comprehensive order, and the full Ninth Circuit reinstated it in an unreasoned one, the U.S. Supreme Court set aside the injunction and accepted the case. Oral argument will take place Wednesday.
The case should be an uphill battle for the federal government. The Supreme Court presumes that Congress does not intend to override state law when it regulates in an area of traditional state concern, such as medical-practice standards. And to restate that, both the Medicare Act and EMTALA have express clauses reiterating it: These federal laws do not interfere with state medical practice.
How the Supreme Court decides this case matters a great deal to the federal government’s power over the states. If it upholds the administration’s claim to be able to mandate abortions as stabilizing care, then emergency rooms suddenly become federal enclaves where only the federal government can say what procedures are required.
On the one hand, that is absurd. It makes little sense that federal control over state practice of medicine would exist in the ER and then evaporate 50 feet away if a patient is admitted to the hospital for treatment. That’s why no one understood EMTALA that way before now.
On the other hand, it is terrifying. If the federal government can override decisions on state medical policy on abortion in the ER, then it can do so on any subject. Will medical marijuana; assisted suicide; or dangerous, body-altering drugs for children struggling with gender dysphoria become federally mandated in the emergency room next?
The Biden administration’s radical position has even more problems because EMTALA was enacted under the Constitution’s Spending Clause — that is, the law has its force because hospitals agree to be bound by its conditions when they accept Medicare funding. Legislation under the Spending Clause is like a contract: You accept the money, and you accept the strings that come with it. But here, hospitals have accepted these federal dollars without the federal government ever having said anything about these “strings”; for 36 years, it never said that EMTALA required abortions that would be prohibited by state law.
Moreover, states such as Idaho — with pro-life laws — were not parties to this “contract” and didn’t take the money or agree to any of its strings. How can states lose their right to enforce their own laws because private hospitals agreed to take federal dollars? It would be a strange and dangerous world that would allow the federal government to pay people to break state law.
The Supreme Court is expected to hand down its decision by the end of its term in June. One can hope that the Court — which put on hold the lower court order during appeal and agreed to accept review without a single recorded dissent — will uphold the traditional authority of states over medical practice and reject the Biden administration’s novel manipulation of EMTALA.