by Rachele Bizzari*
On June 27, 2024, the U.S. Supreme Court dismissed the case Moyle v. United States, which had been previously consolidated with Idaho v. United States, as improvidently granted. As a result, the Justices did not rule on the merits of whether the federal Emergency Medical Treatment and Labor Act (EMTALA) preempts an Idaho law that prohibits most abortions. According to Adam Liptak of The New York Times, this reflects «a strategy of avoidance and delay» that «may have been shaped by a desire to avoid controversy in an election year». In fact, this is the second abortion-related case that the U.S. Supreme Court has dismissed on procedural grounds during the 2023-2024 term.
Although the Court restored a lower court order allowing access to emergency care for pregnant women in Idaho, the decision has been met with concern as it does not provide clear guidelines on the emergency health care to be provided to pregnant women, thus leaving physicians, nurses, and clinicians in a state of uncertainty.
What is the EMTALA?
In 1986, Congress enacted the EMTALA to stop hospitals from turning away patients who lacked insurance or couldn’t pay for healthcare services, a practice known as patient dumping. The law mandates that all medical facilities participating in the Medicare program must provide screening services to anyone who comes to an emergency care unit to determine if an emergency medical condition exists. If such a condition is found, the hospital is required to provide the necessary care to stabilize the patient.
Under EMTALA, an emergency medical condition exists if there are acute symptoms of sufficient severity such that the lack of immediate medical care could reasonably be expected to result in: (i) placing the individual’s health, or with respect to a pregnant woman, her health or that of the unborn child, in serious jeopardy; (ii) serious impairment of bodily functions; or (iii) serious dysfunction of any bodily organ or part. Additionally, a medical emergency also exists if a pregnant woman is in labor and there is not enough time for a safe transfer to another hospital before delivery, or if the transfer could pose a threat to the health or safety of the woman or the unborn child.
Thus, with respect to pregnant women, the law differentiates between the presence of an emergency condition before labor – such as an ectopic pregnancy, a miscarriage, a placental abruption, preeclampsia, and eclampsia – and an emergency medical condition arising during labor.
On July 8, 2022, shortly after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, President Biden issued an executive order titled Protecting Access to Reproductive Health Care Services. Among other initiatives, the President directed the Secretary of Health and Human Services to ensure that pregnant women have access to emergency healthcare, suggesting the update of guidelines related to EMTALA obligations.
A few days later, the Department of Health and Human Services (HHS) issued a memorandum through the Centers for Medicare & Medicaid Services (CMS). The memo clarifies that if a pregnant woman shows up in an emergency unit at a Medicare-participating hospital and is found to have an emergency condition under EMTALA that necessitates an abortion, the physician must provide the necessary treatment. The memo also states that «when a state law prohibits abortion and does not include an exception for the life of the pregnant person – or draws the exception more narrowly than EMTALA’s emergency medical condition definition – that state law is preempted».
Therefore, the issue arises when state laws either do not permit abortion in cases where the woman’s health is at risk or define health exceptions more restrictively than EMTALA. Indeed, the conflict between federal and state law has had a chilling effect on medical staff and the legal offices of hospital facilities, due to the severe penalties for performing abortions outside the permitted cases: women were turned away from hospitals or asked to wait outside, and wait for their health conditions to deteriorate.
The judicial proceedings: Idaho v. United States and Moyle v. United States
Back in 2020, Idaho enacted the Defense of Life Act, which bans abortion at all stages of pregnancy, unless necessary to save the pregnant woman’s life. The law was later amended to include exceptions for the first trimester in cases of pregnancies resulting from rape or incest, provided the offence is reported to a law enforcement agency.
Thus, Idaho’s law is part of the so-called trigger laws, which come into effect upon a specific event: in the case of abortion, the trigger was identified as any Supreme Court decision that overturned Roe v. Wade, in whole or in part, or the adoption of a constitutional amendment that returned the authority to prohibit abortion to the states, in whole or in part.
After the Dobbs ruling, when Idaho law was to take effect, the Biden Administration challenged the Defense of Life Act in court.
On August 24, 2022, the District Court for the District of Idaho granted the federal government’s motion for a preliminary injunction. The district judge found a clear conflict between EMTALA, which requires healthcare providers to perform emergency abortions not covered by the state law’s exceptions, and the Defense of Life Act, which makes performing abortions outside the allowed exceptions punishable by two to five years in prison. Under the doctrine of preemption – based on the Supremacy Clause in Article VI, Clause 2 of the U.S. Constitution – the state law was invalidated.
After Idaho’s request for a review was denied, the case continued before the Court of Appeals for the Ninth Circuit. Initially, a three judge-panel stayed the lower court’s injunction: all the judges were appointed by President Trump. However, a few days later, the Circuit Court voted to rehear the case en banc. Therefore, the government and the Idaho Legislature – represented by House Speaker Mike Moyle, who had already been allowed to intervene at the district court level – filed an emergency application for a stay pending appeal to Justice Elena Kagan, who referred the matter to the full Supreme Court.
Without providing any explanation, the Justices stayed the preliminary injunction issued by the lower court and agreed to hear the case on the merits, treating the application as a writ of certiorari before judgment (for the Court’s order, see here). Thus, as a consequence of the Supreme Court’s decision, the Defense of Life Actwent into full effect as of January 5, 2024.
The Supreme Court’s decision
Chief Justice Roberts, along with Justices Sotomayor, Kagan, Kavanaugh, and Coney Barrett, agreed to dismiss the case, while Justices Thomas, Alito, Gorsuch and Brown Jackson dissented, expressing their willingness to rule on the merits of the dispute.
The dissenting opinions of Justices Brown Jackson and Alito are particularly noteworthy.
Justice Brown Jackson, a liberal member of the Court, took the rare step of reading portions of her dissent from the bench, emphasizing how the Supreme Court’s intervention «has already distorted the litigation process», with the consequence that «it is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened». She further pointed out that the preemption question remains unresolved, leaving physicians torn between risking criminal conviction and helping a pregnant woman in need of care: «Today’s decision is not a victory for pregnant patients in Idaho. It is delay», she wrote, «while this Court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires».
Justice Alito, joined in his dissent by Thomas and, in part, by Gorsuch, was particularly critical as well. He argued that by dismissing the dispute «the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents». The Justice found the majority’s decision «puzzling» and criticized it for failing to provide «any facially plausible explanation».
It is worth noting that although the Supreme Court did not rule on the merits, a majority of the Justices still expressed their views on the preemption issue: the liberal bloc believes that EMTALA preempts the Idaho law, a stance that contrast with the position held by Alito, Gorsuch, and Thomas. Therefore, if and when the Supreme Court eventually rules on the issue, the decision will likely hinge on the votes of Chief Justice Roberts and Justices Coney Barrett and Kavanaugh.
Indeed, as noted by Brown Jackson in her dissenting opinion, another case concerning EMTALA’s interpretation is currently pending in the lower federal courts, which could bring the issue back to the Supreme Court.
In August 2022, the District Court for the Northern District of Texas granted a stay requested by the state, the American Association of Pro-Life Obstetricians & Gynecologists, and the Christian Medical & Dental Association against the guidelines published by CMS in July 2022. This decision was later upheld by the Fifth Circuit Court of Appeals. Although the Texas case primarily addressed the legality of the CMS memorandum under the Administrative Procedure Act (APA), both the District Court and the Court of Appeals ruled that federal law imposes obligations concerning both the woman and the unborn child at every stage of pregnancy – not just during labor, as the statutory language might suggest – thereby ruling out a conflict with state law. A few days later the United States petitioned for certiorari, and the decision is still pending.
A small victory for abortion right
The Supreme Court’s decision in Moyle v. United States highlights the inequalities of the post-Dobbs era and underscores the significant differences in access to abortion services, even in case of emergency, depending on whether one resides in a Republican- or Democratic-leaning state. The uncertainty surrounding abortion access is compounded by the outcome of the upcoming election: should Trump win, his Administration could easily change the emergency care guidelines through an executive order.
Additionally, the Supreme Court’s intervention in a case that had not yet been decided by the Ninth Circuit Court of Appeals raises several concerns. Since January 5, 2024, Idaho physicians and patients have been left without the protection of EMTALA, and by dismissing the case, the Supreme Court provided no guidance to medical staff and their attorneys across the nation on when it is legal to perform an emergency abortion. Data from the policy tracker of the non-profit organization KFF indicate that at least six additional states ban abortion without a health exception, meaning that pregnant women who need an emergency abortion will be denied care until their condition worsens to the point where such a procedure is necessary to save their lives.
Moreover, victory for the Biden Administration and pro-choice groups could be short-lived: the Court of Appeals for the Ninth Circuit may rule in favor of abortion opponents, and in either case, the issue could return to the Supreme Court.
The 2023-2024 term confirms that the fight over abortion is far from over: for the anti-abortion movement, Dobbs does not represent the end of the struggle but the beginning of a push for an America where abortion is banned at every stage of pregnancy. One key strategy in this effort is granting personhood to the fetus – a theory towards which some Justices have shown clear sympathies. Indeed, in Moyle v. United States, Alito argued that «far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her unborn child». In doing so, he implied that states might prioritize the health of the fetus over that of the pregnant person, thus providing further support to anti-abortion movements.
*PhD Candidate, University of Pisa
