The Idaho Abortion Cases Reveal the Biden Administration’s Desperate Attempt to Rewrite the Law

Tomorrow the Supreme Court will hear oral argument in a pair of consolidated cases, Moyle v. United States and Idaho v. United States, that pose the following question: Does the federal Emergency Medical Treatment and Labor Act (EMTALA) preempt Idaho’s Defense of Life Act? The latter statute prohibits most abortions with exceptions for rape, incest, and prevention of the death of the mother according to the doctor’s “good faith medical judgment.” The removal of an ectopic or molar pregnancy is not considered an abortion. EMTALA requires hospitals that receive Medicare reimbursement to provide “necessary stabilizing treatment” to emergency room patients regardless of their ability to pay.

The district court imposed a preliminary injunction and held that EMTALA preempted Idaho law for abortions required 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.” The court’s selective quotation avoids the actual language used in EMTALA: “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 [emphasis mine].”

Although the court’s decision preceded the Idaho legislature’s amendment of the Defense of Life Act to add exceptions and clarifications, the district court denied a motion for reconsideration. A panel of the Ninth Circuit reversed the lower court, holding in an opinion by Judge Lawrence VanDyke that “EMTALA does not preempt” the Idaho law. The federal statute simply “does not set standards of care or specifically mandate that certain procedures, such as abortion, be offered,” the appeals court held, and it cited the Ninth Circuit’s recognition in a prior case that “Congress enacted EMTALA to respond to the specific problem of hospital emergency rooms refusing to treat patients who were uninsured or who could otherwise not pay for treatment.” The en banc Ninth Circuit vacated the panel opinion without any explanation or analysis and granted en banc review. The Supreme Court subsequently stayed the district court’s preliminary injunction and, treating the stay applications as petitions of certiorari before judgment, directed oral argument on the preemption question.

The argument for preemption was concocted by the Biden administration as part of its reaction to the Dobbs decision. Two weeks after the Court handed down its decision in 2022, President Biden, eager to find a way to undermine state pro-life laws, issued an executive order that directed several government agencies to find ways to “promote” abortion. That included “considering updates to current guidance on obligations” under EMTALA. The Centers for Medicare & Medicaid Services quickly complied with guidance that required abortion as a “stabilizing treatment” in emergency rooms “irrespective of any state laws or mandates that apply to specific procedures.”

So the administration took EMTALA, enacted in 1986, and, under the guise of “guidance,” acted as if an abortion right had been dormant there for 36 years. If that seems weak as a legal argument, that’s because it is. The federal statute does not require or even mention abortions. It even has a provision explicitly stating that it does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with” one of its requirements (emphasis mine). It is a real stretch to say that a federal statute that is not about abortion conflicts, and conflicts directly, with a state law’s prohibition of abortion. In fact, as seen in the above-quoted language, when it defines an “emergency medical condition,” the federal law articulates stabilizing not only the woman’s health, but also the health of “her unborn child.” The phrase “unborn child” as an entity to be protected appears four times in the statute.

EMTALA does not provide any specific requirements of how to stabilize a patient’s condition, whether the procedure in question is abortion or something else—take organ transplants, for instance, or experimental medication—that in some cases may not be authorized by state law. Even more than that, EMTALA explicitly requires the child of a pregnant woman in labor to be delivered. But even if we stretched the law to say that it somehow requires abortions as stabilizing treatment in limited circumstances, the Idaho Defense of Life Act providing for the doctor’s judgment to prevent the mother’s death reflects that the state law does not present a conflict.

In short, weighing in Idaho’s favor, the specific text of EMTALA, which doesn’t mention abortion, is protective of the unborn baby’s health, and it counsels against an interpretation that would strain to find that state law was preempted by federal law. And as Judge VanDyke’s panel opinion recognized, the overriding purpose of the federal law was about remedying the problem of hospital emergency rooms turning away patients who could not pay for treatment, not setting a national standard of care. Note as well the Biden administration’s lack of concern in this litigation for conscience rights for medical professionals, in contrast to its assurance in the mifepristone abortion cases about the availability of federal conscience protections for doctors.

Idaho is not the only state with this preemption question pending in the abortion context. The Fifth Circuit held in Texas v. Becerra that EMTALA does not preempt the Texas Human Life Protection Act, and the Biden administration filed a cert petition this month appealing that ruling. The administration’s quest to revive federal courts as a mechanism for legal theories advancing abortion is as aggressive as it is baseless. Today it is in the executive branch that we find what remains of the “abortion distortion” that once plagued the Supreme Court. I hope the justices deliver a firm rebuke of this latest exercise in short-circuiting Congress in order to rewrite the law, undermining principles of federalism in the process.