As the Supreme Court’s website snafu yesterday foretold, the Court today dismissed as improvidently granted the consolidated certiorari petitions in Moyle v. United States. The Court divided 5-4 on the dismissal. Justice Jackson and Justice Alito (joined by Justices Thomas and Gorsuch) each dissented on the ground that the Court should have decided the important legal question the case presents. But Jackson and Alito offer sharply conflicting views on that legal question.
The effect of the dismissal is to return the case to the Ninth Circuit to decide Idaho’s appeal of the district court’s preliminary injunction. The Court in January had, on its own initiative, granted “certiorari before judgment,” bypassing the ordinary appellate process. The Court’s order also reinstates the district-court injunction that compels Idaho to allow abortions in any instances in which the life-of-the-mother exception under Idaho’s abortion law is narrower than EMTALA’s definition of “emergency medical condition.”
I’m going to present in the next post Justice Alito’s views on the merits, which I believe to be correct and which I expect will garner a majority when the case next reaches the Court (perhaps as early as next term). I hope to present in later posts the disagreement between Justice Alito (and Justices Gorsuch and Thomas) and Justice Barrett (and the Chief Justice and Justice Kavanaugh) over the decision to dismiss the petitions.
Let’s start with some background: Under Idaho’s life-of-the-mother exception to its abortion laws, a doctor may perform an abortion if he determines, in his good-faith medical judgment, that the abortion is necessary to prevent the death of the mother. Under the Idaho supreme court’s authoritative interpretation, this standard does not require the doctor to be objectively certain that the abortion is necessary to save the mother’s life. Nor does it require that the risk of death be imminent. It “leave wide room” (in the court’s words) for the doctor’s good-faith medical judgment.
Congress enacted EMTALA—the Emergency Medical Treatment and Labor Act—to prevent hospitals from “dumping” costly patients on other facilities. As HHS explains, EMTALA “imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide … treatment for an emergency medical condition, including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs [emergency medical conditions].” (Emphasis added.)
EMTALA, in other words, sets funding restrictions on hospitals that choose to receive federal funds. It does not establish a general federal obligation, independent of acceptance of funding, to treat emergency medical conditions.
The Department of Justice sued Idaho officials on the theory that Idaho’s life-of-the-mother exception is in some respects narrower than EMTALA’s definition of “emergency medical conditions” and is thus supposedly preempted by EMTALA. As I wrote two years ago, I found DOJ’s preemption claim very puzzling:
If the Idaho law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition,” a Medicare-participating hospital in Idaho might theoretically encounter a situation in which it cannot comply with EMTALA’s funding restriction without violating the Idaho law. But that doesn’t mean that the Idaho law conflicts with EMTALA, as the straightforward (though, to be sure, costly) way for the hospital to prevent any conflict is to decline to participate in Medicare.
EMTALA itself provides (in subsection (f)) that it does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” No such direct conflict exists.
How strange it would be to think that a private party’s decision to accept federal funds subject to a funding restriction preempts a state law that makes it difficult or impossible for that party to comply with the funding restriction. If an Idaho hospital believes that it can’t comply with both Idaho law and the EMTALA condition on Medicare funding, then it should decline the Medicare funding. It can’t accept the funding and then contend that it is somehow exempt from state law. Yet that’s the very position that DOJ is asserting.
In other words, the Biden administration’s proper recourse, if it believes that a Medicare-participating hospital in Idaho won’t comply with EMTALA’s funding restriction, is to terminate its Medicare agreement with that hospital or to take enforcement action against the hospital if and when it fails to comply.