Durbin, Duckworth Join Congressional Democrats In Filing Amicus Brief Urging Ninth Circuit Court To Affirm That EMTALA Requires Hospitals To Provide Emergency Stabilizing Care, Including Abortion Care, Preempting Idaho's Draconian Abortion Ban
After the Supreme Court dismissed the case, returning it to the Ninth Circuit Court, 259 Members of Congress ask the Ninth Circuit to affirm district court decision that under EMTALA, hospitals participating in Medicare must provide emergency stabilizing treatment to patients, including abortion care when necessary
WASHINGTON – Today, U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Tammy Duckworth (D-IL) joined more than 250 Members of Congress in submitting an amicus brief to the U.S. Court of Appeals for the Ninth Circuit in Moyle v. United States and Idaho v. United States, two consolidated cases concerning the Emergency Medical Treatment and Labor Act (EMTALA) under consideration by the en banc Ninth Circuit. EMTALA is a federal law that requires hospitals that receive Medicare funding to provide necessary “stabilizing treatment” to patients experiencing medical emergencies, which can include abortion care.
After the Dobbs decision in 2022, a draconian anti-abortion law in Idaho went into effect that makes it a felony for a doctor to terminate a patient’s pregnancy unless it is “necessary” to prevent the patient’s death. The United States sued the State of Idaho, arguing that the state’s law is preempted by EMTALA in those circumstances in which abortion may not be necessary to prevent imminent death, but still constitutes the necessary stabilizing treatment for a patient’s emergency medical condition. The district court agreed; it held that in those limited, but critically important situations, EMTALA requires Medicare-participating hospitals to provide abortion as an emergency medical treatment. Idaho Republicans appealed that ruling to the Supreme Court, which lifted the injunction and took the case in January. In March, 258 Members filed an amicus brief, asking the Supreme Court to affirm the district court decision. In June, the Supreme Court dismissed the case but without a ruling on the merits, sending the case back to the Ninth Circuit Court and reinstating the district court’s injunction.
In their brief in support of the Justice Department, the lawmakers ask the Ninth Circuit to uphold the district court’s ruling. They argue that the congressional intent, text, and history of EMTALA make clear that covered hospitals must provide abortion care when it is the necessary stabilizing treatment for a patient’s emergency medical condition, and that EMTALA preempts Idaho’s abortion ban in emergency situations that present a serious threat to a patient’s health.
“[T]he 99th Congress passed EMTALA to ensure that every person who visits a Medicare-funded hospital with an ‘emergency medical condition’ is offered stabilizing treatment,” the Members write in their amicus brief. “Congress chose broad language for that mandate, requiring hospitals that participate in the Medicare program to provide ‘such treatment as may be required to stabilize the medical condition.’… That text—untouched by Congress for the past three decades—makes clear that in situations in which a doctor determines that abortion constitutes the ‘[n]ecessary stabilizing treatment’ for a pregnant patient, federal law requires the hospital to offer it. Yet Idaho has made providing that care a felony, in direct contravention of EMTALA’s mandate.”
Importantly, the Members note that in this case, “respecting the supremacy of federal law is about more than just protecting our system of government; it is about protecting people’s lives. If this Court allows Idaho’s near-total abortion ban to supersede federal law, pregnant patients in Idaho will continue to be denied appropriate medical treatment, placing them at heightened risk for medical complications and severe adverse health outcomes… And health care providers, unwilling to let Idaho’s law override their medical judgment regarding their patients’ best interests, will continue their exile from Idaho, creating maternity-care ‘deserts’ all over the state.” The Members point to numerous reports of OB/GYNs leaving Idaho en masse since the state’s abortion ban went into effect. Idaho has since lost 55 percent of its maternal-fetal medicine specialists and three rural hospitals have shut down maternity services altogether.
“These are not hypothetical scenarios. Because Idaho’s abortion ban contains no clear exceptions for the ‘emergency medical conditions’ covered by EMTALA, it forces physicians to wait until their patients are on the verge of death before providing abortion care. The result in other states with similar laws has been ‘significant maternal morbidity,’” write the Members, pointing to harrowing reports of pregnant women with severe health complications being denied necessary abortion care, including an Idaho woman who was flown to Utah for an abortion while hemorrhaging, leaking amniotic fluid, and terrified that she would not survive to care for her two other children. “Federal law does not allow Idaho to endanger the lives of its residents in this way.”
In their brief, the Members also clarify that the references to “unborn child” in EMTALA were intended to expand hospitals’ obligations with respect to providing stabilizing treatment—not contract them or take away the obligation to provide abortion care in certain circumstances.
The Members’ brief also counters an argument from Idaho and its amici that the Supremacy Clause does not apply in this case because EMTALA was passed using Spending Clause authority, and therefore acts only as a condition on Medicare funding. The Members make clear that all laws passed by Congress are entitled to preemption—regardless of their source of constitutional authority, and states cannot pass laws that make it impossible for private parties to accept federal funding, inhibiting the purpose of the federal law.
“EMTALA requires abortion when necessary to stabilize a patient with an emergency medical condition, Idaho’s near-total abortion ban is preempted to the extent that it prevents doctors from providing that care,” the Members write. “This Court should reject Appellants’ novel theory that EMTALA is not entitled to preemptive effect because it was enacted pursuant to Congress’s spending power. Under the Supremacy Clause, all ‘the constitutional laws enacted by congress,’ constitute ‘the supreme Law of the Land,’. As the Supreme Court has repeatedly held, the principle of federal supremacy applies to laws passed pursuant to Congress’s spending authority no less than it does to laws effectuating other enumerated powers.”
“In sum, EMTALA plainly requires hospitals that participate in the Medicare program to provide abortion care when, in a doctor’s medical judgment, it constitutes the ‘[n]ecessary stabilizing treatment’ for a patient’s ‘emergency medical condition.’”
The lawmakers conclude by asking the Ninth Circuit to affirm the district court’s decision that EMTALA requires Medicare-participating hospitals to provide abortion care when it is necessary as emergency medical treatment.
In the Senate, the amicus brief was signed by 48 U.S. Senators, including Durbin and Duckworth. Also signing the amicus brief were U.S. Senators Chuck Schumer (D-NY), Patty Murray (D-WA), Ron Wyden (D-OR), Tammy Baldwin (D-WI), Michael Bennet (D-CO), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Sherrod Brown (D-OH), Laphonza Butler (D-CA), Maria Cantwell (D-WA), Ben Cardin (D-MD), Tom Carper (D-DE), Bob Casey Jr. (D-NJ), Chris Coons (D-DE), Catherine Cortez Masto (D-NV), Kirsten Gillibrand (D-NY), Maggie Hassan (D-NH), Martin Heinrich (D-NM), George Helmy (D-NJ), John Hickenlooper (D-CO), Mazie Hirono (D-HI), Tim Kaine (D-VA), Mark Kelly (D-AZ), Angus King Jr. (D-ME), Amy Klobuchar (D-MN), Ben Ray Luján (D-NM), Ed Markey (D-MA), Jeff Merkley (D-OR), Chris Murphy (D-CT), Alex Padilla (D-CA), Gary Peters (D-MI), Jack Reed (D-RI), Jacky Rosen (D-NV), Bernie Sanders (I-VT), Brian Schatz (D-HI), Jeanne Shaheen (D-NH), Kyrsten Sinema (I-AZ), Tina Smith (D-MN), Debbie Stabenow (D-MI), Jon Tester (D-MT), Chris Van Hollen (D-MD), Mark Warner (D-VA), Raphael Warnock (D-GA), Elizabeth Warren (D-MA), Peter Welch (D-VT), Sheldon Whitehouse (D-RI).
In the House, the brief was signed by 211 U.S. Representatives.
The lawmakers’ amicus brief to the Supreme Court can be read in full here.
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