Key Takeaways:

  • On January 2, 2024, the United States Court of Appeals for the Fifth Circuit affirmed a lower court's decision finding that the federal Emergency Medical Treatment and Labor Act (EMTALA) did not preempt the state of Texas' restrictive abortion law.
  • On January 5, 2024, the United States Supreme Court agreed to weigh in on a separate but related case involving a challenge to the state of Idaho's restrictive abortion law under the theory of EMTALA preemption. 
  • The Supreme Court's decision in this case – Idaho v. United States – will be the most impactful abortion policy case since its 2022 Dobbs decision and could have far-reaching consequences with respect to the intersection of EMTALA preemption and abortion policy. 

As we've discussed in previous alerts ( here and  here), after the Supreme Court's Dobbs decision, which eliminated the federal constitutional right to abortion and returned the question of abortion regulation to the states, the federal Emergency Medical Treatment and Labor Act (EMTALA) became a focal point in the Biden administration's efforts to protect access to certain abortion services in states that adopted, or were considering adopting, restrictive abortion laws. By way of brief background, EMTALA – a federal statute enacted in 1986—provides that a hospital with an emergency department that participates in the Medicare program must provide a medical screening examination to any individual who presents to the emergency department and, if the hospital determines the patient is suffering from an emergency medical condition, either stabilize or appropriately transfer that patient.

In July 2022, a few weeks following the Dobbs decision, the United States Department of Health and Human Services (HHS) issued a guidance document to “remind hospitals of their existing obligation to comply with EMTALA” in situations where abortion services would be the appropriate form of stabilizing care for a pregnant patient presenting with a particular emergency medical condition, such as ectopic pregnancy, complications of pregnancy loss, and emergent hypertensive disorders, such as preeclampsia with severe features. Notably, the guidance also specified that “when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA's emergency medical condition definition — that state law is preempted.”

HHS also issued a  letter to health care providers reiterating the HHS guidance and reaffirming the HHS position that physicians have an obligation to perform an abortion under EMTALA notwithstanding contrary state laws.

The guidance and letter prompted two separate lawsuits – one filed by Texas challenging the guidance as outside HHS authority, and the other filed by the United States Department of Justice (DOJ) against the state of Idaho arguing that EMTALA preempts that state's restrictive abortion law. This alert provides updates on both of these cases, one of which will soon be before the Supreme Court, which may give the final word on the issue of EMTALA preemption of restrictive state abortion laws.

Texas v. Becerra

Shortly after HHS released its EMTALA guidance, the state of Texas and two provider organizations filed suit against the agency, asking the lower court to invalidate the guidance because EMTALA did not authorize the federal government to compel healthcare providers to perform abortions. On August 23, 2022, the trial court agreed with the plaintiffs, finding that the guidance exceeded HHS' statutory authority, and that the agency was also required to promulgate the guidance through notice and comment rulemaking, but failed to do so. Since that time, HHS has been enjoined from enforcing the guidance and its interpretation regarding the scope of EMTALA's requirements in the state of Texas and against the provider organizations also parties to the suit. Shortly thereafter, HHS filed an appeal of the lower court's decision to the United States Court of Appeals for the Fifth Circuit.

On January 2, 2024, the Fifth Circuit issued a decision affirming the lower court's ruling. First, the court found that the HHS guidance was a final agency action subject to the court's review, because the guidance includes mandatory language that renders it binding, and constitutes a “new” legal obligation, as it “sets out HHS's legal position – for the first time – regarding how EMTALA operates post-Dobbs.” Next, the court weighed whether the HHS guidance was a lawful interpretation of the EMTALA statute and promulgated in accordance with the Administrative Procedure Act (APA). Primarily at issue here is the scope of EMTALA's “stabilizing treatment” definition and whether it can be read to exclude certain forms of medical services, including services that have been criminalized in a particular state. On this point, the Fifth Circuit found that the EMTALA statute does not explicitly address the question of whether abortion can ever be the required form of stabilizing care under EMTALA's obligations, and the Medicare statute as a whole generally prohibits HHS from interfering with the practice of medicine or the manner in which medical services are provided. As such, the Fifth Circuit concluded that the scope of stabilizing care required to be provided under the EMTALA statute must align with what is allowable under state law, as the regulation of the practice of medicine is within the purview of a state's police powers, and the EMTALA statute lacks the clear language needed to overcome deference to the state in this context.

Lastly, the court also found that the HHS guidance was a statement of policy that establishes or changes a substantive legal standard, and thus required notice and comment rulemaking pursuant to the Medicare Act's requirements, as interpreted by the Supreme Court in Azar v. Allina Health Services, 139 S. Ct. 1804, 1808 (2019). According to the Fifth Circuit, the HHS guidance is a statement of policy because it informs the public of HHS' adjudicatory approach concerning EMTALA's application in the context of abortion and state abortion laws. Furthermore, the court found that the HHS guidance “establishes or changes a substantive legal standard” because it “goes beyond EMTALA by mandating abortion.”

As a result of the Fifth Circuit's decision, HHS remains enjoined from enforcing this interpretation of the EMTALA statute in the state of Texas as well as against the additional plaintiff provider organizations who joined the case.

Idaho v. United States

The ultimate disposition of the Texas case will likely hinge on how the Supreme Court decides a separate but related case – Idaho v. United States. As we've explored in earlier posts, in August 2022 the Biden administration filed a lawsuit against the state of Idaho to challenge its own abortion law, which criminalizes the provision of abortion services and only provides physicians an affirmative defense in cases where abortion was necessary to “prevent the death of the pregnant woman” and in cases of rape or incest. At the district court level, the Biden administration argued that the Idaho state law was preempted by the EMTALA statute and HHS' guidance. 

The district court agreed with the Biden administration, and preliminarily enjoined the state from enforcing its abortion law “to the extent that statute conflicts with EMTALA-mandated care.” According to the lower court, Idaho's law should be preempted by the EMTALA statute because it is impossible for physicians to comply with both the state law and EMTALA, and Idaho's law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 

Idaho subsequently appealed the lower court's preliminary injunction to the United States Court of Appeals for the Ninth Circuit. In September 2023, a three-judge panel of the Ninth Circuit allowed Idaho's abortion law to take full effect pending resolution of the appeal. However, the Biden administration then filed an emergency motion for en banc review of this decision, and, on October 10, 2023, the en banc Ninth Circuit agreed to review the case and also reinstated the lower court's injunction of the Idaho law in the meantime.

The Supreme Court to Weigh In 

On November 20, 2023, Idaho filed an emergency application asking the Supreme Court to issue a stay of the existing injunction on the state's abortion law and to weigh in on the central question at issue in the case regarding EMTALA preemption. In its  request, which was filed before the Fifth Circuit's Becerra decision discussed above, Idaho noted that the developments in the Ninth Circuit may soon be in conflict with the Fifth Circuit on the question of whether the EMTALA statute requires the provision of abortion services in certain cases. 

On January 5, 2024, a few days after the Fifth Circuit issued its Becerra decision, the Supreme Court  granted Idaho's request to lift the injunction on the state's abortion law and agreed to take on the case. Ultimately, it is likely the Court will weigh in on the central question at issue in both the Idaho and Texas cases: whether the federal EMTALA statute preempts a state abortion law that does not allow for an exception in cases where a physician determines an abortion is the necessary stabilizing treatment under the EMTALA statute.

Oral arguments before the Supreme Court will be scheduled for late April 2024, with a decision expected to be issued this summer. We will continue to monitor these important cases and will return with additional updates as they occur.

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