The right to not be turned away in a hospital emergency room remains protected for now.
The US Supreme Court this week did not rule on whether states can block hospitals from treating patients with medical emergencies who need abortions, ruling that the case should not have come before the Supreme Court and will continue to be heard by lower federal courts.
In the meantime, doctors can continue to provide emergency care to pregnant patients without fear, but this is only a temporary respite and the risks are greater than they may appear.
inMoyle v. United StatesThe court reinstated a lower court ruling that had barred Idaho from enforcing a criminal ban on abortion when it conflicted with federal law. Emergency Medical Treatment and Labor Act (EMTALA).
EMTALA has for nearly 40 years mandated that if a hospital is paid by Medicare, as nearly all hospitals are, they provide treatment for a patient’s medical emergency, regardless of whether the patient can pay, what state they live in, or who they are.
EMTALA requires states to act to protect the health of their patients, and does not allow for exceptions because exceptions could harm patients. Idaho argues that state legislatures decide what medical treatments exist, and that state abortion bans that allow doctors to perform abortions only to prevent death, but not to protect health, are exempt from EMTALA.
As Justice Ketanji Brown Jackson pointed out in her concurring opinion, this is a simple issue the Court could have decided to resolve, because federal law prevails when federal and state laws conflict. This would have alleviated the great confusion that doctors and patients currently face. Under Idaho law, doctors fear that they will be charged with a felony for practicing medicine and lose their license, so pregnant women are not allowed to practice medicine without the consent of the state. He has actually been airlifted to a hospital in another state in an emergency. It’s an issue that was debated at length during oral argument. The line between preventing death and protecting health is not as clear in reality as Idaho lawmakers make it seem.
ConstitutionalSuperiority clauseState laws must yield when they conflict with federal law. Because EMTALA clearly preempts conflicting state laws, when Idaho banned abortions, the state created a contradiction for itself. This weakens Idaho’s argument that the Biden administration overreached when it reminded hospitals that EMTALA protects both health and life. The administration simply confirmed that EMTALA has not since been changed.Dobbs v. Jackson Women’s Health Organization,Just two years ago, the Supreme Court overturned abortion rights.
Surprisingly, Idaho asked the court to prioritize state policy over federal regulations. Even more worrying, this idea was taken seriously by at least six of the nine justices.
Idaho’s position, while not a victory today, is alarming for at least three reasons.
First, Justice Amy Coney Barrett’s concurring opinion (joined by Chief Justice John Roberts and Justice Brett Kavanaugh) and Justice Samuel Alito’s dissenting opinion (joined by Justices Clarence Thomas and Neil Gorsuch) invite further litigation to explore the idea that laws enacted under Congress’ spending power are somehow different from other federal laws. The impact of this theory, if it takes hold, would be enormous.
Congress uses its constitutional spending power to fund some of the longest-running social security programs, including Medicare (health insurance for the elderly and disabled) and Medicaid (health insurance for low-income people). Accounts for nearly half of all births in the United StatesThese include the Children’s Health Insurance Program (which serves low-income children who don’t qualify for Medicaid), food and housing programs, etc. Congress can either spend money directly on these programs or fund them through the states.
Medicare is a fully federal program, with no state involvement, so the funds flow to health care providers. Fund recipients must follow federal law to receive the funds, and federal law takes precedence over state law.
Contrary to Barrett and Alito’s opinion, this isn’t a difficult issue at all: Federal law is the law of the land. But in other cases, the justices have shown a similar interest in hearing theories that limit Congress’ spending power. Just last term, The court decided the Medicaid case. Indiana has raised the same question, trying to argue that it doesn’t have to follow federal rules because it follows the rules of its nursing home spending program. And now the state is challenging the new nursing home regulations. Section 1557as well as federal laws that protect civil rights in health care settings.
Limiting Congress’ spending power would weaken most federal social welfare programs and many state programs that rely on federal funding. After Dobbs, state laws ran rampant. Confusion and chaos As a result, the situation will become even worse.
Second, state-to-state confusion will force patients to travel farther to get the care they need, so the Court will soon have to decide how strong the right to travel is. In other words, these will not be the last abortion cases the Court will have to decide.Hippocratic Medical Association v. FDAMifepristone (used in medication abortions) remains legal, but states are already trying new approaches to combat it. Louisiana makes drugs illegalHowever, the problem persists in Idaho andTexas law bans abortion We will continue our EMTALA litigation through federal court.
Congress could avoid some of these lawsuits by amending EMTALA’s definition of “medical emergency” to include abortions that, in the treating health care provider’s judgment, would protect the patient’s life or health. When Congress passed the law in 1986, it left it up to health care providers to determine what constituted a medical emergency, but the general understanding was that it included any necessary medical treatment until states removed health from their criminal abortion exceptions.
Third, the confusion facing health care providers and patients in the wake of Dobbs is unlikely to be reversed anytime soon. The Court’s two abortion cases this term have only postponed the issue, potentially until the next presidential administration, which may have different priorities. Patients sufferNo one experiencing a medical emergency should be denied treatment because of the state they live in. Congress made this principle clear 40 years ago and may need to make it clear again.
Nicole Huberfeld is the Edward R. Utley Professor of Health Law at the Boston University School of Law and School of Public Health. She is co-director of Boston University’s Reproductive Justice Program.
