Courts Split on Whether EMTALA Preempts State Abortion Ban Laws
- August 26, 2022
Two federal courts considering the effect of the Emergency Medical Treatment and Labor Act (EMTALA) on state laws restricting abortion this week came to opposite conclusions, with the U.S. District Court in the Northern District of Texas finding EMTALA does not preempt the state’s abortion restriction law and the U.S. District Court for the District of Idaho finding preemption.
U.S. Attorney General Merrick Garland praised the Idaho decision in an August 24 statement, saying the ruling "ensures that women in the State of Idaho can obtain the emergency medical treatment to which they are entitled under federal law" including "abortion when that is the necessary treatment."
"As the District Court ruled, a state law that attempts to prevent a hospital from fulfilling its obligations under EMTALA violates federal law and the Supremacy Clause of the U.S. Constitution," Garland said.
Garland noted DOJ "disagrees" with the Northern District of Texas decision and that the agency is "considering appropriate next steps.”
“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law," the statement said.
In the Texas case, the state and two organizational plaintiffs filed suit against various Department of Health and Human Services (HHS) officials seeking to enjoin the agency from enforcing EMTALA in accordance with the terms of guidance issued by HHS in July.
On August 23, the court preliminarily enjoined enforcement of the guidance, finding no direct conflict with Texas’ Human Life Protection Act, which took effect on August 25, 2022. The law prohibits abortion unless the life of the mother is at risk.
The court found the guidance “goes well beyond” the text of the EMTALA statute “which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict.”
According to the court, the guidance discards EMTALA’s requirement to consider the welfare of unborn children when determining how to stabilize a pregnant woman.
“Because EMTALA does not resolve situations where both a pregnant woman and her unborn child face emergencies, it does not preempt state laws addressing that circumstance,” the court said in support of its holding that it would be possible for physicians to comply with both statutes.
The court also found the guidance impermissibly interferes with the practice of medicine in violation of the Medicare Act. EMTALA is subject to the Medicare Act's prohibition that "[n]othing in this subchapter . . . shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided."
But the guidance “attempts to do just that,” the court said.
The court also found the guidance is a statement of policy that establishes or changes a substantive legal standard and therefore was required to meet notice-and-comment requirements under the Administrative Procedure Act, which the agency did not do.
An Idaho federal court came to the opposite conclusion, enjoining the state from enforcing its abortion restriction law to the extent the statute conflicts with EMTALA-mandated care.
The Department of Justice filed a complaint August 2 seeking to invalidate Idaho Code § 18-622. The Idaho law implements a near-total ban on abortions and makes it a felony for physicians to perform an abortion in all but extremely narrow circumstances.
The court noted that EMTALA directs physicians to provide care if they reasonably expect the patient’s condition will result in serious impairment to bodily functions, serious dysfunction of any bodily organ or part, or serious jeopardy to the patient’s health. In contrast, the state criminal abortion statute contains no such exception and “only justifies abortions that the treating physician determines are necessary to prevent the patient’s death.”
The court said it would be impossible for physicians to comply with both statutes.
Although the law provides for an affirmative defense for physicians, the court said EMTALA is broader than the affirmative defense in two ways: (1) it requires abortion care to prevent injuries that are more wide-ranging than death, and (2) it calls for stabilizing treatment, which of course may include abortion care—when the patient could “reasonably be expected” to suffer injury.
The court also noted the structure of the law—specifically that it provides for an affirmative defense rather than an exception—"compounds the deterrent effect and increases the obstacle it poses to achieving the goals of EMTALA.”
The state argued that in the wake of the Supreme Court’s Dobbs decision, the public interest lies in allowing states to regulate abortions, but the court held that “Dobbs did not overrule the Supremacy Clause.”
United States v. Idaho, No. 1:22-cv-00329-BLW (D. Idaho Aug. 24, 2022).
State of Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex. Aug. 23, 2022).