See Part 1
Let’s turn now to Justice Alito’s opinion (joined by Justices Thomas and Gorsuch) on the merits of DOJ’s preemption claim, an opinion that seems little read or understood by many who condemn it, including Justice Jackson, who ludicrously contends that Alito’s opinion “suggest[s] … that States have free rein to nullify federal law.”
Here is Alito’s summary (citations omitted):
The Government’s preemption theory is plainly unsound. Far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her “unborn child.” And even if there were some ambiguity in the statutory text, we would be obligated to resolve that ambiguity in favor of the State because EMTALA was enacted under the Spending Clause, and as we have held time and again, conditions attached to the receipt of federal funds must be unambiguous. Here, no one who has any respect for statutory language can plausibly say that the Government’s interpretation is unambiguously correct. And in any event, Idaho never consented to any conditions imposed by EMTALA and certainly did not surrender control of the practice of medicine and the regulation of abortions within its territory.
In Part I-A (pp. 4-7), Alito explains more fully that the “text of EMTALA shows clearly that it does not require hospitals to perform abortions in violation of Idaho law.” In Part I-B (pp. 8-10), he shows that “the context in which EMTALA was enacted reinforces what the text makes clear.”
In Part II (pp. 11-15), he discusses the well-established, and far more demanding, “special rules” that apply to federal preemption claims when “Congress relies on its authority to attach conditions to the receipt of federal funds.” Conditions on such Spending Clause legislation must be set out unambiguously, and recipients must be given a legitimate choice whether to accept the conditions. Neither requirement is satisfied here.
EMTALA does not unambiguously require abortions prohibited by Idaho law. The need for clear statutory language is especially important in this suit because the Government’s interpretation would intrude on an area traditionally left to state control, namely, the practice of medicine.
Idaho never agreed to be bound by EMTALA, let alone to surrender its historic power to regulate the practice of medicine or the performance of abortions within its borders. Idaho is not even a party to the agreement between the federal government and the Medicare-participating hospitals.
Alito explains that the “potential implications of permitting preemption here are far-reaching”:
Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice. It could authorize the practice of medicine by any doctor who accepts Medicare payments even if he or she does not meet the State’s licensing requirements.
But the Medicare Act in which EMTALA is situated expressly disclaims any construction that would “authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided” in a particular State.