Full Ninth Circuit to Consider EMTALA’s Reach in Idaho Abortion Law Challenge
- October 13, 2023
The full Ninth Circuit agreed October 10 to rehear a panel decision finding the Emergency Medical Treatment and Labor Act (EMTALA) does not preempt an Idaho law that criminalizes most abortions.
A three-judge panel of the Ninth Circuit granted September 28 a stay of a district court decision enjoining enforcement of the Idaho law. The federal government filed September 30 an emergency motion with the Ninth Circuit for rehearing en banc. The appeals court granted the motion and vacated the panel decision.
The Idaho law, which was enacted in 2020 and set to go into effect after the Supreme Court’s decision overturning Roe v. Wade, makes it a crime for a health care provider to perform an abortion unless “[t]he physician determine[s], in his good faith medical judgment . . . that the abortion was necessary to prevent the death of the pregnant woman.”
The federal government challenged the law, arguing it was preempted by EMTALA. The district court granted a preliminary injunction in August 2022 enjoining its enforcement.
On appeal, the Ninth Circuit panel agreed to stay the lower court's injunction, finding a strong likelihood that the abortion law did not implicate EMTALA.
EMTALA provides certain procedures that hospitals must follow but does not impose any standards of care, the panel said. And even if EMTALA required abortions as “stabilizing treatment” in limited circumstances, the Idaho law's exception for preserving the life of the mother avoided a direct conflict with the federal statute.
The case is one of two challenges involving EMTALA that were brought in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2243 (2022). While the U.S. District Court for the District of Idaho found EMTALA preempted Idaho’s abortion restrictions, the U.S. District Court in the Northern District of Texas came to the opposite conclusion, finding no direct conflict between the federal statute and Texas’ abortion law. State of Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex. Aug. 23, 2022). The government has appealed the Texas court decision to the Fifth Circuit.
United States v. Idaho, Nos. 23-35440 and 23-35450 (9th Cir. Oct. 10, 2023).