On Wednesday, the Supreme Court hears oral argument in Moyle v. United States, which presents the question whether a federal law known as EMTALA—the Emergency Medical Treatment and Labor Act—imposes a national abortion mandate in situations that meet the law’s definition of “emergency medical condition.” If the Biden administration were to prevail, its next step would be to issue regulatory guidance that interprets that definition so loosely (e.g., to require deference to any diagnosis of “mental health” concerns) that it would eviscerate all state restrictions on abortion.
In brief, the Biden administration is taking a law that was enacted to prevent Medicare-participating hospitals from “dumping” costly patients on other facilities and is trying to twist that law to impose its radical abortion agenda.
As the excellent briefs for Idaho legislators and the state of Idaho make clear, there are so many defects in the Biden administration’s legal position in this case that I am confident that the Court will reject that position—as the initial Ninth Circuit panel in this case did (in staying the district court’s injunction pending appeal) and as the Fifth Circuit did in a case involving a supposed clash between EMTALA and Texas law.
If you’ll pardon for me getting into the procedural weeds, the Court’s action in this case so far is very encouraging. Without any recorded dissent, the Court overrode an order of the en banc Ninth Circuit and stayed the district court’s injunction. It also treated Idaho’s application for a stay as a petition for writ of certiorari before judgment and granted the petition, thus taking the case away from the Ninth Circuit en banc panel that had waived further briefing and that had already scheduled expedited oral argument.
As petitioners put it, the Biden administration’s effort to transmogrify EMTALA into a “Trojan horse for nationwide abortion rules” is an “intolerable federal power grab.” Let’s hope that the Court, preferably unanimously, puts an end to this wayward aggression.
(Please also read Carrie Severino’s new Bench Memos post on the case, which I saw just as I was posting this.)