Biden administration’s strategy fails with court’s restoration of Idaho abortion ban

 

CNA Staff, Oct 3, 2023 / 16:15 pm (CNA).

Idaho can now fully enforce its ban on abortion after a U.S. appeals court ruled last week that a provision in the state’s law related to medical emergencies does not conflict with a federal law, the 1986 Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide stabilizing treatment to indigent patients.

This latest loss in court for the Biden administration could lead it to abandon the strategy — once a centerpiece of the administration’s response to pro-life laws — of attempting to use EMTALA to strike down state abortion bans across the country, one legal expert told CNA.

Idaho’s law, Section 622, was designed to take effect Aug. 25, 2022, following the June 2022 overturning of Roe v. Wade. Idaho was one of more than a dozen states to have passed “trigger laws” intended to outlaw abortion as soon as the federal right to abortion that Roe established was struck down.

However, the U.S. Department of Justice filed a lawsuit on Aug. 2, 2022, against Idaho seeking to block the law, arguing that it conflicts with EMTALA, a law that requires hospitals to provide stabilizing treatment to a person experiencing a medical emergency, regardless of the person’s ability to pay.

Under EMTALA, every hospital that receives Medicare funds must provide “stabilizing treatment” to patients with an “emergency medical condition.” According to the DOJ, the law defines necessary stabilizing treatment to include “all treatment needed to ensure that a patient will not have her health placed in serious jeopardy, have her bodily functions seriously impaired, or suffer serious dysfunction of any bodily organ or part.”

Attorney General Merrick Garland had asserted that Idaho’s law would prevent doctors from performing abortions when the mother’s life is at risk, despite the state law having an explicit carve-out for such a situation. Idaho’s law provides an exception to the ban if the abortion was, in the physician’s judgment, “necessary to prevent the death of the pregnant woman.”

As a result of Garland’s lawsuit, a U.S. district judge on Aug. 24, 2022, blocked a small portion of the law related to medical emergencies; the injunction was set to remain in effect until a final judgment was reached in the case. The lawsuit was the first legal challenge brought by the federal government against a state abortion restriction since the overturning of Roe.

Circuit Judge Lawrence VanDyke, writing for the three-judge 9th U.S. Circuit Court of Appeals panel in San Francisco, issued a strong rebuke of the government’s arguments in his Sept. 28 ruling.

“Even assuming that EMTALA did require abortions in certain, limited circumstances, it would not require abortions that are punishable by section 622,” VanDyke wrote.

“It is not the purpose of EMTALA to force hospitals to treat medical conditions using certain procedures. Instead, EMTALA seeks to prevent hospitals from neglecting poor or uninsured patients with the goal of protecting ‘the health of the woman’ and ‘her unborn child.’”

The federal government had argued, VanDyke noted, that because hospitals are required to stabilize patients’ medical conditions, they must perform abortions because abortion could be a “form of stabilizing treatment.”

But, “EMTALA does not impose any standards of care on the practice of medicine … It certainly doesn’t require that a hospital provide whatever treatment an individual medical professional may desire.”

“To read EMTALA to require a specific method of treatment, such as abortion, pushes the statute far beyond its original purpose, and therefore is not a ground to disrupt Idaho’s historic police powers,” the judge continued.

Other than for the life of the mother, the Idaho law’s only exception is for an instance of rape or incest that has been reported to police, with the requirement that a copy of the report be provided to the physician.

Idaho Attorney General Raúl Labrador praised the Circuit Court’s ruling in a Sept. 29 statement.

“Last year, the Supreme Court granted states the authority to establish their own abortion policies. In an effort to circumvent the Dobbs decision, the Biden administration baselessly sued the State of Idaho,” Labrador said.

“I’m proud of the work my team has done, including collaborating with the Legislature’s counsel, to ensure Idaho’s sensible law continues to save the lives of babies and provides medical professionals with the ability to exercise their judgment to assist women who need emergency care.”

Strategy dead?

Katie Glenn Daniel, state policy director for the advocacy group SBA Pro-life America, told CNA that despite the DOJ attempting this strategy in several states, “trying to force exceptions into the law that is much broader than what the legislature passed and the governor signed,” courts have consistently ruled against them in light of the Dobbs decision.

The Biden administration in 2022 made EMTALA a centerpiece of its response to pro-life state laws. In mid-2022, President Joe Biden issued an executive order in which he directed Secretary of Health and Human Services (HHS) Xavier Becerra to identify steps to ensure that patients, including “pregnant women and those experiencing pregnancy loss,” receive the “full protections for emergency medical care afforded under the law,” specifically mentioning EMTALA.

In a July 11, 2022, letter to health care providers, Becerra instructed providers to perform abortions in emergencies — regardless of state law — under EMTALA. The Centers for Medicare and Medicaid Services (CMS), a division of the HHS, also issued a memorandum July 11, 2022, with the same instruction found in Becerra’s letter.

However, U.S. courts have since ruled — correctly, Daniel asserted — that there is “no reason” EMTALA would supersede state law, and as a result “these agencies cannot rewrite their rules to be more pro-abortion than Congress intended.”

Indeed, the federal government is currently barred from enforcing its 2022 instructions due to a preliminary injunction amid a lawsuit against the instructions brought by Texas.

Daniel said this latest loss in court for the Biden administration related to the Idaho law may signal that the administration will “pivot in other directions” and not rely on this EMTALA strategy in the future when it comes to pushing its pro-abortion agenda.

Other pro-abortion entities, however, are still pushing this strategy, she said. Daniel noted that the pro-abortion Center for Reproductive Rights (CRR) filed a complaint with the Department of Health and Human Services in September alleging that a hospital in Oklahoma violated EMTALA by not treating a woman for a molar pregnancy. CRR admitted in its complaint, however, that Oklahoma law didn’t prevent a woman from getting treated for a molar pregnancy, but rather individual doctors at the hospital decided to deny the woman care.