T he Biden administration has forced the Supreme Court back into the abortion-law business, where it does not want to be. But this time, it’s debating the limits of federal power. The case, Moyle v. United States, yet again finds this administration aggressively reading general provisions into a federal statute to grant it highly specific and ever-evolving powers far afield from what Congress wrote or intended.
The oral argument, held on April 24, laid bare the absurdly broad, standardless, and ultimately antidemocratic nature of the administration’s position. Yet again, the Biden administration and the liberal justices are proving themselves a menace to the rule of written law.
The big-picture question in Moyle (and its companion case, Idaho v. United States) is whether the federal Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986, precludes states — at least in the emergency-room context — from banning abortion except only in cases when it’s necessary to save the life of the mother. The case arises out of a Justice Department challenge filed shortly after Dobbs to an Idaho abortion ban. As usual, to get to that big-picture question, the Court must wade through a bunch of other disputes, including whether EMTALA requires any particular medical standards and, if so, where they come from.
EMTALA Is about Money, Not Abortion
From Roe v. Wade through Dobbs, the big question in abortion cases has been the scope of an individual right to abortion that would prevent the government (federal or state) from regulating the practice. The Court in Dobbs finally called out the fiction of the whole enterprise: Nothing in the Constitution guarantees or even mentions such a right.
But that’s not the end of the story, because once the issue returned to politics, the federal and state political branches had different ideas about abortion. The Biden administration now claims that Idaho’s abortion law doesn’t comply with the national standard of emergency-room care supposedly required by EMTALA.
When, you might ask, did Congress enact a national code of emergency-room medical standards? What gives Congress that power?
EMTALA was passed in 1986 to deal with a specific problem: Emergency rooms in for-profit hospitals were turning away patients who couldn’t pay. As the Fourth Circuit explained in Bryan v. Rectors of the University of Virginia (1996), “Congress’s sole purpose in enacting EMTALA was to deal with the problem of patients being turned away from emergency rooms for non-medical reasons,” specifically, their inability to pay. “The source of EMTALA was the widely reported scandal of emergency rooms’ increasingly dumping indigent patients from one hospital to the next while the patients’ emergency conditions worsened.” But “the legal adequacy of that care is then governed not by EMTALA but by the state malpractice law that everyone agrees EMTALA was not intended to preempt.”
The focus of Congress wasn’t on hospitals providing substandard care but on hospitals failing to provide the same care to indigent patients as to paying patients. They were allowed to do this when not treating emergencies, but Congress felt that patients in need of emergency medical attention didn’t have the time to shop around. This was an entirely financial issue. Courts and the executive branch in construing EMTALA ever since have understood the statute as such — until now.
If Congress had actually aimed to impose a national standard of hospital medical care rather than narrowly ensure that emergency-room patients could be seen in a timely way without regard to their ability to pay, it would make no sense whatsoever that EMTALA deals only with emergency medical care and says nothing about the standard of care otherwise.
Nor does it make sense to read the law as an abortion statute. EMTALA never mentions abortion. It was enacted when Roe v. Wade was in force, so there was little space at the time for states to ban most abortions. It was passed through a Republican-controlled Senate and signed into law by a pro-life president, Ronald Reagan. Indeed, a major focus of EMTALA at the time was to ensure timely care for women who showed up at emergency rooms ready to deliver a baby, hence the use of “Active Labor” in the title of the law. Thus, EMTALA mandates treatment of “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the . . . pregnant woman . . . or her unborn child . . . in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part” (emphasis added). The statute further requires that any subsequent transfer of the patient or patients be done in a way that “minimizes the risks to the individual’s health and, in the case of a woman in labor, the health of the unborn child” (emphasis added). There are further requirements to accept transfers if a hospital has specialized “neonatal intensive care units.” How could that mandate to treat the unborn child be reread as a mandate to deny the child the chance to survive?
Standards and Burdens
Congress, as Justice Antonin Scalia used to say, typically does not hide elephants in mouseholes. In other words, courts should not assume that something big and consequential was, without anybody noticing it, smuggled into a statute that doesn’t even mention it. EMTALA never mentions abortion and never mentions creating a national standard of medical care that displaces state law. Even if we were reading just the language and purpose of EMTALA, it would be clear that the law doesn’t get into any of that.
But wait: If we want to interpret EMTALA, we need to know how to read it. It’s a basic principle of American law, under the supremacy clause of the Constitution, that if Congress validly exercises its power to make federal law, it can preempt any state law that stands in the way. That is true whether Congress explicitly says it is preempting a particular kind of state law or whether the state law conflicts with federal law.
But the federal law needs, first, to spring from a valid federal power — and in determining whether a state law is superseded by federal law, it matters which power the federal law is based on, how it is written, and what state power is being set aside. The Supreme Court has developed a bunch of different standards for these collisions:
EMTALA contains an express preemption provision, and it’s neither broad nor specific: “The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section” (emphasis added). Moreover, state abortion laws, and state laws in general regarding medical treatment and the licensing of doctors, are classic exercises of states’ police power over safety and health.
Two of the liberal justices claimed to be baffled by these ordinary preemption principles. Justice Sonia Sotomayor told Idaho’s lawyer, “You’re sort of putting preemption on its head.” In her view: “The whole purpose of preemption is to say that if the state passes a law that violates federal law, the state law is no longer effective.” Justice Ketanji Brown Jackson added, “You say . . . the federal government in this situation wanted the states to be able to set the standards, and I guess I don’t understand how that’s even conceivable, given this standard, given this statute . . . that is coming in to displace state prerogatives.” But it’s not just conceivable that the Court would find that state prerogatives haven’t been displaced by a federal law — it’s the presumptive rule.
Medicare for Abortion Law
EMTALA is not an exercise of the general federal police power (there is no such power) or the power over interstate commerce. So, where did Congress get the power to do this in the first place?
What Congress did when it passed EMTALA was to use its power under the spending clause. But the spending clause doesn’t empower Congress to pass binding laws; all it can do is attach conditions to federal funding. Notably, when Justice Clarence Thomas asked Solicitor General Elizabeth Prelogar if she knew of any other federal spending programs that preempted the enforcement of state criminal laws, she couldn’t name one.
Because Congress wanted the maximum leverage over hospitals, it used the biggest gun it had: Medicare. If you take Medicare, you must agree to the terms of EMTALA. Nearly every hospital in the country accepts Medicare patients, given the preponderance of elderly people among medical patients. That was true in 1986, and it remains true today. But every hospital is at least theoretically free to choose not to take that deal.
This presents a few immediately obvious problems for the Biden administration’s reading of EMTALA, not all of which are before the Court in Moyle. As the Congressional Research Service (CRS) summarized the state of the law in 2021:
The Supreme Court has identified four constitutional limits on Congress’s power to attach conditions to federal funding. First, Congress must provide clear notice of the funding condition. Second, the condition must relate to the program or funding stream it restricts. Third, the condition may not be unduly coercive. And fourth, the condition may not induce the recipient to violate an independent constitutional provision.
First, the statute’s terms hardly provide “clear notice” of a broadly preemptive pro-abortion rule that nobody expected to find in EMTALA for four decades. As CRS notes, “the clear notice principle requires conditions on federal funding to be unambiguous and prospective so that states have an opportunity to accept or reject the terms of the funding arrangement.” That’s a more stringent standard than the usual presumption against preemption — and, as I’ll discuss below, when you drill into the pro-abortion argument in this case, it becomes even more apparent that it fails the clear-notice rule because its proponents’ theory of what EMTALA requires is an eternally moving target.
Second, spending-clause rules are supposed to be related to the spending program. Since the Court in South Dakota v. Dole (1987) found that state drinking ages were related to federal highway funding because of the risk of drunk driving on highways, the Court has yet to clarify the relatedness limit on the spending power. Even when read to apply to its intended purpose, EMTALA is pushing that limit because, by definition, Medicare patients are able to pay (even if not for all care in all situations) and are highly unlikely to show up pregnant or in labor — which was even truer in 1986. It’s a classic elephants-in-mouseholes claim to say that a federal program to provide health care to the elderly contains an unwritten rule requiring abortions. It just doesn’t pass the straight-face test.
Third, EMTALA is massively coercive. At the time it was written, the Court had yet to clarify when it would strike down a spending-clause condition on grounds of coerciveness. It did so in NFIB v. Sebelius (2012), ruling that it was unduly coercive to threaten to kick states out of Medicaid if they didn’t expand the program as envisioned by Obamacare. The NFIB Court cited the vast financial leverage of the Medicaid program over state budgets. Threatening to kick hospitals out of Medicare is, for many of them, effectively a death sentence.
This Is the Deal, We May Alter It Further
Now, consider what the Biden administration and the liberal justices are aiming for in their reading of EMTALA. Much of the dispute has narrowed since Merrick Garland rushed to file suit before even finding out how Idaho’s attorney general or its court system would read the state’s law. By now, Idaho recognizes broader health exceptions than were included in the original statute, and when Prelogar listed various critical conditions that might justify an emergency abortion, Idaho’s lawyer, Joshua Turner, argued that its law already allowed for those because they were all life-threatening conditions.
Justice Brett Kavanaugh asked Turner, “Is there any condition that you’re aware of where the solicitor general says EMTALA requires that an abortion be available in an emergency circumstance where Idaho law, as currently stated, does not?” Justice Amy Coney Barrett was blunter: “I don’t really understand why we have to address” what EMTALA requires “if what you say is that nobody has been able to identify a conflict” between it and Idaho law. She concluded with a question no lawyer ever wants to hear: “Why are you here?”
Idaho argues that what the Biden administration really wants is a mental-health exception to abortion bans, which would serve as a Trojan horse and convert “emergency rooms into federal abortion enclaves.” The Biden administration’s brief responded with an evasive footnote: “Idaho neither identifies a single case where an emergency-room physician terminated a pregnancy to stabilize a mental-health condition, nor cites any clinical standard identifying termination as necessary stabilizing care in such circumstances” (emphasis added).
At argument, Prelogar contended that “Congress set a baseline national standard of care” in EMTALA. Turner dared her to say that EMTALA can’t require mental-health treatment. Consider her response, when pressed on this by Justice Samuel Alito:
PRELOGAR: There can be grave mental-health emergencies, but EMTALA could never require pregnancy termination as the stabilizing care . . . because that wouldn’t do anything to address the underlying brain-chemistry issue that’s causing . . . the mental-health emergency in the first place. This is not about mental-health generally. This is about treatment by ER doctors in an emergency room. And when a woman comes in with some grave mental-health emergency, if she . . . happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. She might not be in a position to give any informed consent. Instead, the way you treat [a] mental-health emergency is to address what’s happening in the brain. If you’re having a psychotic episode, you administer antipsychotics.
ALITO: Well, I . . . really want a simple, clear-cut answer to this question so that going forward everybody will know what the federal government’s position is. Does “health” mean only physical health, or does it also include mental health?
PRELOGAR: With respect to what qualifies as an emergency medical condition, it can include grave mental health emergencies, but let me be very clear about our position. That could never lead to pregnancy termination because that is not the accepted standard of practice to treat any mental-health emergency. [Emphasis added]
Notice where Prelogar came out here: not that the meaning of EMTALA is defined by the language of the statute but that its meaning depends on “the accepted standard of practice.” As Turner noted, standards can change: “You go outside the text to professional standards that are floating out there that might change day to day . . . the American Psychiatric Association, in a 2023 position paper, says that abortions are imperative for mental-health conditions.” And who changes those standards? Justice Elena Kagan gave away the game:
It’s a standard that clearly has reference to accepted medical practice, not just whatever one doctor happens to think. . . . This is a standard that is objective that incorporates accepted medical standards of care. . . . It’s absolutely clear that that’s not a reference to what state law involves. . . .
[EMTALA] definitely didn’t address the standards of care. It did leave that to the medical community. . . . Congress was not going to address every treatment for every condition, but it said you do what is needed to assure non-deterioration… the way to stabilize patients in these circumstances, all doctors agree.
That really is the rub. Turner’s position is that the standard of care is set at the state level — and while that standard can incorporate widespread changes in medical practices, it is ultimately subject to the determinations of the state’s people, acting through the state legislature and the state medical board. As he noted at argument, “there are numerous cases where states intervene and say the standard of care in this circumstance for this condition is X, not Y.” He continued: “Opioids, for example. In New Jersey, a doctor cannot stabilize chronic pain with more than a five-day supply of opioids. In Pennsylvania, it can be seven. In other states, there is no limit.”
Under Kagan’s position, federal law has removed emergency-room care from the ordinary process of state medical regulation and handed it over to an undefined “medical community,” yet another unelected and unaccountable coterie of “experts” whose decisions are exempt from civilian, democratic review. Prelogar is playing the long game: Get the Court to hand over the meaning of EMTALA to these groups, and then abortion advocates will use their capture of medical associations to progressively expand what EMTALA commands. All of which claims to be done in the name of federal spending on health care for the elderly.