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The DOJ is suing to make sure women who need medically necessary abortions can actually get them

A federal law requires ERs to care for patients with medical emergencies. The DOJ wants that enforced for abortion patients.

A protester in front of the Idaho State Capitol dome holds a sign that reads, “Idaho: The women as property state.”
Attendees at a pro-abortion rights rally hold up signs outside the Idaho State Capitol in Boise on May 14. The Supreme Court’s reversal of Roe v. Wade triggered an unusually strict abortion ban in Idaho that will take effect on August 25.
Sarah A. Miller/Idaho Statesman/Tribune News Service via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

A month after the Supreme Court’s decision overruling Roe v. Wade, it’s unclear whether many patients with dangerous pregnancies can receive medically necessary abortions. Some women have traveled to other states for lifesaving care because doctors in their home state feared prosecution. Others were left to bleed by their health care providers who feared they couldn’t legally provide care that would stop it.

A lawsuit, filed by the Justice Department on Tuesday, could alleviate at least some of these cases — and potentially provide legal clarity to doctors who want to perform medically necessary abortions but fear being hauled off to prison if they do. The case is United States v. Idaho.

The suit involves the Emergency Medical Treatment and Labor Act (EMTALA), which typically requires emergency rooms at hospitals that accept Medicare funds to provide “stabilizing treatment” for patients with medical emergencies. The DOJ argues in its suit that EMTALA requires these hospitals to perform an abortion if one is medically required to save a patient’s life or prevent serious bodily harm.

This law could matter in quite a few states — at least 22 states have laws on the books banning many or nearly all abortions — but it is particularly relevant in Idaho, where an unusually strict abortion ban will take effect on August 25. That ban provides, with only narrow exceptions, that “every person who performs or attempts to perform an abortion ... commits the crime of criminal abortion.”

The Idaho law does provide exceptions for abortions that are necessary to save the life of a patient, or for pregnancies resulting from rape or incest. Significantly, however, the law does not permit an abortion when a patient may suffer very serious health consequences — including a permanent disability — but their life is not threatened.

Additionally, while criminal laws typically require prosecutors to prove their case beyond a reasonable doubt, the Idaho law places the burden of proof on the abortion provider to convince a jury that one of these narrow exceptions applies. Thus, a doctor who performs an abortion on a patient who literally will die without it could still be thrown in prison for up to five years if they fail to convince a jury that the abortion was “necessary to prevent the death of the pregnant woman.”

The DOJ’s legal argument is straightforward. The Constitution provides that federal law “shall be the supreme Law of the Land,” and thus state laws that conflict with a federal statute are typically “preempted” and cannot be enforced by the state. Idaho’s abortion ban fairly clearly conflicts with EMTALA, at least when the only way for a hospital to provide “stabilizing treatment” during a medical emergency is to perform an abortion that is illegal under Idaho’s law.

The Idaho case will be heard by Judge Lynn Winmill, a Bill Clinton appointee, but Winmill is unlikely to have the last word on this issue. Last month, Texas filed a lawsuit (Texas v. Becerra) which claims that EMTALA does not require hospitals to perform emergency abortions. And other lawsuits are likely to proliferate in states with strict abortion laws.

Ultimately, in other words, it is likely that these suits will produce a morass of conflicting lower court decisions that will need to be resolved by the Supreme Court — the very same Supreme Court that overruled Roe.

EMTALA requires most hospitals to treat medical emergencies

Although EMTALA only applies to hospitals that accept Medicare funds, that includes the overwhelming majority of hospitals in the United States, as Medicare pays the lion’s share of medical costs for elderly patients. In Idaho, according to the Justice Department’s complaint, “there are approximately 43 hospitals that voluntarily participate in Medicare” (as of 2020, 52 hospitals were licensed to operate in Idaho, according to the state’s Department of Health & Welfare). DOJ says that “approximately 39” of these hospitals have emergency rooms that must comply with EMTALA.

The primary purpose of EMTALA is to prevent “patient dumping” — hospitals refusing to treat patients with medical emergencies who are unable to pay for their care and telling the patient to go elsewhere — but the law is written in expansive terms. It provides that “if any individual ... comes to a hospital and the hospital determines that the individual has an emergency medical condition,” the hospital typically must “stabilize the medical condition” (in certain limited circumstances, the hospital may transfer the patient to a different facility, which will provide this stabilizing treatment).

US Attorney Merrick Garland, backed by Associate Attorney General Vanita Gupta, speaks during a news conference on August 2, announcing that the US Department of Justice has filed a lawsuit seeking to block Idaho’s new restrictive abortion law.
Drew Angerer/Getty Images

EMTALA, moreover, defines the term “emergency medical condition” to include not just life-threatening conditions, but also conditions that place someone’s health “in serious jeopardy,” or that threaten “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.”

Thus, for example, if a patient’s pregnancy could damage their uterus and render them infertile, EMTALA requires hospitals to treat this patient and to provide them with an abortion if necessary — even though such an abortion would be illegal in Idaho unless the abortion is also “necessary to prevent the death of the pregnant woman.”

EMTALA, moreover, explicitly provides that it preempts a state law that “directly conflicts” with EMTALA’s requirements. So the DOJ has a very strong argument that Idaho’s law cannot be enforced against health providers who perform abortions that are necessary to treat an “emergency medical condition,” as that term is defined by federal law.

Texas’s lawsuit offers a preview of how Idaho might try to prevent EMTALA from functioning

The Becerra lawsuit out of Texas is, to say the least, very odd. It does not challenge EMTALA itself. Instead, it asks a court to “hold unlawful and set aside” a six-page document issued by the Biden administration last month, which states the administration’s position that physicians subject to EMTALA must provide an abortion when one is needed to stabilize a medical emergency.

One glaring problem with the Becerra lawsuit is that the document Texas finds objectionable doesn’t actually have any legal effect on health providers. It merely summarizes the Biden administration’s understanding of EMTALA. So, even if a court did block this document, EMTALA would remain good law and its terms would still apply to patients who need an emergency abortion.

Nevertheless, Texas does raise a few legal arguments that Idaho is likely to raise in defense of its abortion ban.

The first rests on a budget rider which, Texas claims, prohibits the DOJ from spending its own funding “to ‘require any person to perform, or facilitate in any way the performance of, any abortion.’” Even if a federal court could enforce this rider against the Justice Department, however, that would, at most, require the DOJ to quit its own lawsuit against Idaho. It wouldn’t prevent private citizens from suing to enforce EMTALA.

Texas’s strongest argument, meanwhile, rests on Supreme Court decisions limiting the government’s ability to place conditions on federal funding offered to states. Congress is allowed to say to states that “if you take this money, you must agree to the following conditions,” but, as Texas argues in its complaint, “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”

The crux of Texas’s argument is that the EMTALA statute did not “unambiguously condition ... the receipt of Medicare funds on providing abortions.”

But there are two problems with this argument. One is that, while EMTALA does not explicitly state that hospitals must specifically provide abortions, it does state that any hospital subject to EMTALA must “stabilize the medical condition” of “any individual” who arrives at an emergency room with a medical emergency. That’s unambiguous language that is broad enough to include emergency abortion care.

The Supreme Court’s cases dealing with grants to states, moreover, apply specifically to federal funds given to state governments. But EMTALA primarily imposes obligations on private hospitals that accept Medicare funding. Thus, even if a state-run hospital might not be subject to all of EMTALA’s obligations, private hospitals should still be required to comply with EMTALA.

All of which is a long way of saying that the DOJ’s Idaho lawsuit should be a slam dunk — although it’s anyone’s guess what a judiciary dominated by Republican appointees will do with that case.

If the DOJ prevails, that does not mean that every patient who seeks an abortion from an emergency room will receive care. It doesn’t even mean that every pregnant patient with a serious medical condition will receive such care — EMTALA applies only to medical emergencies, not to all conditions that may eventually endanger a patient’s life or health.

But if the DOJ does prevail, it should mean that patients with emergency medical conditions can legally receive medically necessary abortions in most hospitals — even if their state tries to ban them.

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