Last month, the Supreme Court kicked the can down the road in two consolidated abortion cases, State of Idaho v. United States of America and Moyle v. United States of America, disappointing many on both sides of the issue who wished for a clear ruling about these headliner cases. But despite not resolving the merits, the court highlighted several concessions by the Biden administration that will shape the litigation as it continues in the U.S. Court of Appeals for the 9th Circuit.
In April, the Supreme Court considered whether one federal life-affirming statute, the Emergency Medical Treatment and Active Labor Act , overrides a state life-affirming statute, Idaho’s Defense of Life Act , by forcing the state’s emergency room doctors to perform abortions .
Confused? You’re not alone.
Congress passed EMTALA nearly 40 years ago, and President Ronald Reagan signed it into law, to prevent hospitals that accept Medicare funding from declining to treat indigent patients in need of emergency medical care. It requires those hospitals to provide any such individual with “an appropriate medical screening examination within the capability of the hospital’s emergency department ... to determine whether” the person has an “emergency medical condition,” regardless of ability to pay. It leaves, as it should, the question of specific treatments appropriate for stabilizing care to state law, deferring instead to state medical standards.
Importantly, EMTALA explicitly directs emergency rooms to care for pregnant women and their “unborn child[ren].” In fact, the plain text of the statute explicitly demands protection for these “unborn child[ren]” in four places. What it doesn’t reference anywhere is abortion.
Idaho’s Defense of Life Act also protects the lives of women and their unborn children by preventing doctors from performing abortions unless necessary to save the life of the mother. It was passed in 2020 and was set to go into effect shortly after the Supreme Court overruled Roe v. Wade and “return[ed] the issue of abortion to the people’s elected representatives” in 2022. Idahoans took the Supreme Court at its word, as did 20 other states that have enacted similar pro-life laws.
But mere weeks after the Roe v. Wade reversal, the Biden administration argued for the first time since EMTALA’s enactment that the statute overrides state law and requires emergency room doctors to perform abortions — even if such procedures violate state law. This twisted interpretation of EMTALA would nullify state laws protecting unborn children in Medicare-funded hospital emergency rooms.
But no conflict exists between EMTALA and Idaho’s law as both seek to save lives. The administration is trying to override Idahoans’ choice to preserve life by reinterpreting EMTALA to demand that hospital emergency rooms take a baby’s life where the mother’s life is not in physical danger. EMTALA doesn’t require that. No federal law has ever required that. And the administration is not authorized to supersede the states’ medical standards of care, particularly where state law does not permit that particular procedure.
Now the Supreme Court has sent the cases back to the 9th Circuit without addressing these merits. Technically speaking, this reinstitutes an injunction that barred Idaho from enforcing its law while the suit continues. But that injunction has evidently been stripped by the Biden administration’s concessions. First, the Biden administration “disavowed the notion that an abortion is ever required as stabilizing treatment for mental health conditions.” And second, much like in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine , the government “clarified that federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context.”
As Justice Amy Coney Barrett explained in her concurrence (joined by Chief Justice John Roberts and Justice Brett Kavanaugh), given these concessions and the Idaho Supreme Court’s recent interpretations of the state’s law, Idaho’s ability to enforce the Defense of Life Act under the existing injunction “remains almost entirely intact.” In other words, “the injunction will not stop Idaho from enforcing its law in the vast majority of circumstances” while the case proceeds. And as Justice Ketanji Brown Jackson highlights in her partial dissent, this ruling is only a delay. Idaho can still squarely put to rest the idea that EMTALA requires abortions that violate state law.
The attempt to reinterpret EMTALA is one of several recent examples of the Biden administration’s disregard for the law. It is also a transparent attempt to exploit a federal statute that says nothing about abortion to reimpose a federal abortion mandate artificially post-Roe. Medicare statutes such as EMTALA must “unambiguously” state their obligations. And as Justice Samuel Alito made clear in comments joined by Justices Clarence Thomas and Neil Gorsuch, “no one who has any respect for statutory language can plausibly say that the Government’s interpretation is unambiguously correct.”
Because EMTALA does not set standards of care or mandate certain procedures, Idaho’s law poses no obstacles to EMTALA’s goal of ensuring that everyone, regardless of ability to pay, will receive life-saving care. Yet this administration is trying to use one life-affirming law to invalidate another. Idahoans see it, multiple members of the Supreme Court see it, and we’re confident the lower courts now tasked with resolving the merits will see it, too.
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Gabriella McIntyre is a legal counsel with Alliance Defending Freedom ( @ADFLegal ), which is assisting Idaho’s attorney general to defend its law.
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