Why Idaho’s position in the Supreme Court emergency abortions case is concerning

The right not to be turned away at a hospital’s emergency room remains protected, for now.

The U.S. Supreme Court did not decide this week whether states can stop hospitals from caring for patients with medical emergencies that require performing an abortion. Instead, the court held it should not have taken the case, so lower federal courts will continue with it. 

In the meantime, doctors can continue to provide pregnant patients with emergency care without fear. But this is a temporary reprieve, and the stakes are even higher than they seem.

In Moyle v. US, the court restored a lower court’s decision that barred Idaho from enforcing its criminal law banning abortion when it conflicts with a federal law called the Emergency Medical Treatment and Labor Act (EMTALA).

For nearly 40 years, EMTALA has created a duty to provide care for any patient’s medical emergency, regardless of whether they can pay, what state they live in, or who they are, if the hospital is paid by Medicare, as nearly all hospitals are. 

EMTALA requires acting to protect a patient’s health and has no exceptions, because carve-outs could harm patients. Idaho claimed that state lawmakers decide which medical treatments can exist, so the state argued its abortion ban, which only allows doctors to provide an abortion to prevent death but not to protect health, was not governed by EMTALA.

As Justice Ketanji Brown Jackson noted in her concurring opinion, this is an easy question that the court could have decided to settle because federal law wins when there is a conflict between federal and state laws. This would have alleviated the substantial confusion that doctors and patients currently face. Under Idaho’s law, doctors fear being charged with a felony and losing their license to practice medicine for providing care, and so pregnant women have actually been airlifted to hospitals in other states for emergencies of all kinds, a problem discussed at length during oral arguments. The line between preventing death and protecting health is not as clear cut in real life as Idaho’s lawmakers like to pretend.

Because of the Constitution’s Supremacy Clause, state law must yield when it conflicts with federal law. EMTALA expressly preempts incompatible state laws, so when Idaho banned abortion, the state created its own conflict. This undercuts Idaho’s claim that the Biden administration overstepped when it reminded hospitals that EMTALA protects both health and life. The administration merely affirmed that EMTALA did not change after Dobbs v. Jackson Women’s Health Organization, when the Supreme Court overturned the right to abortion just over two years ago.

Astonishingly, Idaho asked the court to elevate state policy above a federal rule. Even more concerning is that this idea was taken seriously by at least six of the nine justices.

Idaho’s position, though it did not win today, rings alarm bells for at least three reasons.

First, Justice Amy Coney Barrett’s concurrence (joined by Chief Justice John Roberts and Justice Brett Kavanaugh) and Justice Samuel Alito’s dissent (joined by Justices Clarence Thomas and Neil Gorsuch) invite more litigation exploring the idea that laws enacted under Congress’s spending power are somehow different from other federal laws. The implications of this theory taking hold would be enormous.

Congress uses its constitutional spending power for some of the longest-standing social programs, including Medicare (health insurance for elderly and disable people), Medicaid (health insurance for low-income people that covers nearly half of all births in the U.S.), the Children’s Health Insurance Program (which covers kids who are low income but don’t qualify for Medicaid), and others like food and housing. Congress can spend money directly for these programs, or it can go through the states by giving them the money for such policies.

Medicare is purely federal, the states are not involved, and so money flows to health care providers. These funding recipients must follow federal law to receive the money, and federal law preempts state law.

Contrary to Barrett and Alito’s opinions, this is not a hard question at all. Federal law is the law of the land. Yet, in other cases, the justices have shown the same interest in hearing theories that would limit Congress’s spending power. Just last term, the court decided a Medicaid case where Indiana raised the same question, trying to claim that it did not need to follow federal rules for nursing homes because they are spending program rules. And states are currently challenging new regulations for Section 1557, the federal law protecting civil rights in health care settings, in the same way.

Limiting Congress’s spending power would undercut most federal social programs, and many of the state programs that rely on federal funding. We already have a situation after the Dobbs ruling where state laws have run amok, and the confusion and chaos that have resulted would get worse.

Second, due to the state-by-state chaos, patients travel more and farther to receive care that they need. So, the court will have to decide soon how robust the right to travel is — in other words, these are far from the last abortion cases the court will need to decide. After the court’s recent decision in Alliance for Hippocratic Medicine v. FDA, mifepristone (which is used in medication abortion) remains legal. But states are already trying new approaches to challenge mifepristone, like Louisiana outlawing the drug, keeping the issue alive. Meanwhile Idaho and Texas laws banning abortion will continue to work their EMTALA challenges through federal courts.

Congress could amend EMTALA’s definition of “medical emergency” to head off some of this litigation. A “medical emergency” could be defined to include abortions where providing them would preserve a patient’s life or health in the judgment of the treating health care provider. Congress deferred to providers in deciding what is a medical emergency when it passed the law in 1986, but the inclusion of any necessary treatment has been the common understanding — until states excluded health from exceptions to criminal abortion laws.

Third, the confusion health care providers and patients are facing after the Dobbs ruling is unlikely to reverse course anytime soon. The court’s two abortion cases this term just kick the can down the road, potentially delaying them for another presidential administration with different priorities. In the meantime, patients suffer. No one having a medical emergency should be denied care due to the state they live in. Congress made this principle clear 40 years ago, and it may need to do so again.

Nicole Huberfeld is Edward R. Utley Professor of Health Law at Boston University School of Law and School of Public Health. She is co-director of the BU Program on Reproductive Justice.