Do women still have a right to stabilizing abortion care under federal law?

Almost two years ago, the Supreme Court eliminated the constitutional right to abortion that had been recognized for almost 50 years.

Now, in Moyle v. United States, the court has strongly hinted that it is ready to eliminate the limited statutory protection for patients who need emergency abortions under the federal Emergency Medical Treatment and Labor Act (EMTALA), which was enacted by Congress in 1986.

EMTALA requires that Medicare-funded hospitals — essentially all hospitals in the country —provide any patient with “necessary stabilizing treatment” if they have an “emergency medical condition” that could “reasonably be expected to result in” placing their health in “serious jeopardy,” “cause serious impairment to bodily functions” or cause “serious dysfunction of any bodily organ or part.” In some cases, that necessary stabilizing treatment is the termination of a pregnancy.

When Justice Samuel Alito handed down his majority opinion in Dobbs, he went out of his way to emphasize, three times, that the issue of abortion should be determined by the people and their elected representatives, which of course includes Congress.

First, he announced, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” He next proclaimed, “This Court has neither the authority nor the expertise to adjudicate” disputes concerning “the effects of the abortion right on the lives of women” or “the status of the fetus” and must follow the “original constitutional proposition” that “courts do not substitute their social and economic beliefs for the judgment of legislative bodies.” Finally, he said the court now returns the authority to regulate abortion “to the people and their elected representatives.”

The people’s elected representatives in Congress did just that in EMTALA when they required Medicare-funded hospitals to provide pregnant women who have an “emergency medical condition” the “necessary stabilizing treatment,” including an abortion.

But Idaho passed a law that became effective right after Roe v. Wade was overturned making it a crime to provide pregnant women who have the emergency medical conditions to which EMTALA applies the necessary stabilizing treatment that terminates a pregnancy, except when the abortion is “necessary to prevent the death of the pregnant woman,” or when the pregnancy is ectopic or molar or results from rape or incest.

In Idaho’s view, every American with an emergency medical condition is entitled to necessary stabilizing treatment at Medicare-funded hospitals — except pregnant women who need emergency abortions. Health care professionals who violate the Idaho law can face jail time and have their license suspended or revoked.

The federal government sued to prevent Idaho from enforcing its law in a way that conflicts with EMTALA, which expressly says that state laws that conflict with EMTALA requirements are preempted. The trial court agreed Idaho cannot do so. The court found persuasive the evidence of medical experts that pregnant women can experience emergency medical conditions that require the stabilizing treatment of an abortion, such as “uncontrollable uterine hemorrhage,” “infection after the amniotic sac … has ruptured” and “pre-eclampsia.”

The court ruled Idaho cannot make such abortions criminal, and entered an injunction preventing Idaho from doing so. “Basic preemption principles” require that federal law takes precedence over inconsistent state law, the court wrote, especially when the federal law has an explicit preemption provision.

In September 2023, a three-judge panel of the Ninth Circuit court of appeals stayed the injunction pending appeal. But two weeks later, the Ninth Circuit en banc vacated that decision and reinstated the injunction.

Yet earlier this month, the Supreme Court stayed enforcement of the narrow injunction that simply protects the rights under EMTALA of pregnant women with emergency medical conditions to necessary stabilizing treatment. The court did not explain its decision. It scheduled Idaho’s appeal for argument in April, with a decision likely by the end of June.

Until then, women in Idaho with emergency medical conditions that require stabilizing medical treatment that terminates a pregnancy will not be able to receive that treatment, except in the narrow circumstances allowed by the Idaho law. Those women and their families face enormous suffering, risk, fear and anguish. Their lives will be disrupted as they have to scramble to find and afford the necessary treatment outside Idaho while they are experiencing emergency medical conditions — just like the women who have been denied life-saving and fertility-saving care in states that ban abortions.

Justice Brett Kavanaugh wrote a concurring opinion to explain his decision to join the Dobbs verdict that eliminated the constitutional right to abortion. In his words, “The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.”

Since Congress, in EMTALA, has given pregnant women with emergency medical conditions, like everyone else with emergency medical conditions, the right to stabilizing medical treatment in Medicare-funded hospitals, the Supreme Court should not override the democratic process and restrict that right when the stabilizing medical treatment requires the termination of a pregnancy.

Michael J. Dell is a New York lawyer who litigates and writes about constitutional issues.