One month after the Supreme Court’s decision was quashed Roe v. WadeIt is unclear whether many patients with dangerous pregnancies can have medically necessary abortions. Some women have traveled to other states for life-saving care because doctors in their home state feared persecution. Others were left to bleed by their caregivers who feared they couldn’t provide legal care that would stop it.
A lawsuit, filed by the Justice Department on Tuesday, could alleviate at least some of these cases — and potentially provide legal clarity to doctors who want to perform medically necessary abortions but fear being dragged to jail if they do. The case is United States v. Idaho.
The suit includes the Emergency medical treatment and labor law (EMTALA), which typically requires emergency rooms at hospitals that accept Medicare funds to provide “stabilizing treatment” to patients with medical emergencies. The DOJ argues in its lawsuit that EMTALA requires these hospitals to perform an abortion if it is medically necessary to save a patient’s life or prevent serious bodily harm.
This law could be relevant in quite a few states — at least 22 states have laws on the books banning many or nearly all abortions — but it’s especially relevant in Idaho, where an unusually strict abortion ban goes into effect on August 25. , with only minor exceptions, that “any person who performs or attempts to perform an abortion … commits the crime of criminal abortion.”
Idaho law does provide exceptions for abortions necessary to save a patient’s life, or for pregnancies resulting from rape or incest. It is significant, however, that the law does not allow an abortion when a patient could have very serious health consequences – including permanent disability – but their life is not threatened.
In addition, while criminal law typically requires prosecutors to prove their case beyond a reasonable doubt, Idaho law places the burden of proof on the abortion provider to convince a jury that one of these narrow exceptions applies. So a doctor performing an abortion on a patient who will literally die without an abortion could do that still be thrown in prison for up to five years if they fail to convince a jury that the abortion was “necessary to prevent the death of the pregnant woman”.
The DOJ’s legal argument is simple. The Constitution provides that federal law “shall be the supreme law of the land’, and so state laws that violate a federal statute are usually “reserved” and cannot be enforced by the state. Idaho’s abortion ban is quite clearly in violation of EMTALA, at least when the only way for a hospital to provide “stabilizing treatment” during a medical emergency is by performing an abortion that is illegal under Idaho law.
The Idaho case will be heard by Judge Lynn Winmill, a Bill Clinton appointee, but Winmill is unlikely to have the final say on the matter. Last month, Texas filed a lawsuit (Texas v. Becerra) claiming that EMTALA does not oblige hospitals to perform emergency abortions. And other lawsuits are likely to increase in states with strict abortion laws.
In other words, it is likely that these lawsuits will eventually lead to a quagmire of conflicting lower court decisions to be resolved by the Supreme Court – the same Supreme Court that roe.
EMTALA requires most hospitals to treat medical emergencies
While EMTALA only applies to hospitals that accept Medicare funds, that includes the vast majority of hospitals in the United States, as Medicare pays the lion’s share of medical costs for elderly patients. In Idaho, according to the Complaint from the Ministry of Justice“there are about 43 hospitals that voluntarily participate in Medicare” (as of 2020, 52 hospitals licensed to operate in Idaho, according to the state’s Ministry of Health and Welfare). DOJ says “about 39” of these hospitals have emergency rooms that are EMTALA compliant.
The primary goal of EMTALA is to prevent “dump patient– hospitals that refuse to treat patients with medical emergencies who can’t afford their care and tell the patient to go elsewhere – but the law is written in extended terms. It states that “if a person … comes to a hospital and the hospital determines that the person is in a medical emergency”, the hospital should generally “stabilize the medical condition” (in certain limited circumstances, the hospital may transfer the patient to a other facility, which will provide this stabilizing treatment).
In addition, EMTALA defines the term “medical emergency” as not only life-threatening conditions, but also conditions that “seriously endanger a person’s health”, or that cause a “serious impairment of bodily functions” or “serious dysfunction of any body organ or part.”
For example, if a patient’s pregnancy could damage the uterus and render it infertile, EMTALA requires hospitals to treat the patient and give an abortion if necessary — even though such an abortion would be illegal in Idaho unless the abortion is also performed. “necessary to prevent the death of the pregnant woman.”
In addition, EMTALA explicitly states that it anticipates a state law that “direct conflicts” with the requirements of EMTALA. So the DOJ has a very strong argument that Idaho’s law cannot be enforced against health care providers who perform abortions necessary to treat a “medical emergency,” as that term is defined by federal law.
Texas lawsuit offers a preview of how Idaho could try to prevent EMTALA from functioning
The Becerra lawsuit from Texas is, to say the least, very strange. It does not challenge EMTALA itself. Instead, it asks a court to “keep and set aside illegally” a six page document Released last month by the Biden administration, stating the administration’s stance that doctors subject to EMTALA should perform an abortion when necessary to stabilize a medical emergency.
A glaring problem with the Becerra lawsuit is that the document that Texas finds objectionable actually has no legal effect on health care providers. It just sums up the understanding of the Biden government of EMTALA. So even if a court were to block this document, EMTALA would remain a good law and its terms would still apply to patients requiring emergency abortion.
Nevertheless, Texas is making some legal arguments that Idaho is likely to advance in defense of its abortion ban.
The first rests on a budget rider who, Texas claims, is prohibiting the DOJ from spending its own funding “to “compel every person to perform, or facilitate in any way the performance of any abortion.’” Even if a federal court could enforce this rider against the Justice Department, at the most it would require the DOJ to drop its own lawsuit against Idaho. It wouldn’t stop individuals from suing EMTALA.
Texas’s strongest argument, meanwhile, is based on Supreme Court decisions that compromise the government’s ability to… impose conditions on federal funding offered to states. Congress may tell states that “if you accept this money, you must agree to the following terms,” but, as Texas argues in its complaint, “if Congress intends to impose a condition on the award of federal funds , will it must do this unequivocally.”
The gist of Texas’s argument is that the EMTALA statute did not “unambiguously determine the receipt of Medicare funds for providing abortions.”
But there are two problems with this argument. One is that while EMTALA doesn’t explicitly state that hospitals must specifically provide abortions, it does state that any hospital subject to EMTALA must “stabilize the medical condition” of “each person” who arrives at an emergency room with a medical emergency. That is unambiguous language that is broad enough to include emergency abortion care.
In addition, Supreme Court cases pertaining to state grants apply specifically to federal funds provided to state governments. But EMTALA mainly imposes obligations on private hospitals that accept Medicare funding. So even if a state hospital is not required to comply with all of EMTALA’s obligations, private hospitals should still be obliged to comply with EMTALA.
All this is a long way of saying that the DOJs Idaho lawsuit should be a slam dunk — though no one can guess what a Republican appointee-dominated judiciary will do with that case.
If the DOJ wins, that doesn’t mean every patient who requests an abortion in an emergency room will receive care. It doesn’t even mean that every pregnant patient with a serious medical condition will receive such care – EMTALA only applies to medical emergencies, not to all conditions that could ultimately endanger a patient’s life or health.
But if the DOJ prevails, it should mean that patients with medical emergency medical conditions can legally get medically necessary abortions in most hospitals — even if their state tries to ban them.