United States: Competing EMTALA Decisions Underscore Complexity Of Post-Dobbs Legal Landscape

Key Takeaways:

• On August 24, 2022, two federal district court judges issued competing opinions underscoring the lack of clarity and consensus regarding the interplay of federal law and state abortion laws.
• The opinions specifically addressed the interaction between the federal Emergency Medical Treatment and Labor Act (EMTALA), and restrictive abortion laws in Texas and Idaho. These diametrically opposed opinions set the stage for a long-term legal battle that is almost certain to end up at the Supreme Court, and illustrate the challenges the Biden administration will face in attempting to utilize existing federal laws to mitigate the impact of restrictive state abortion laws.
• In the meantime, providers and patients in Texas are left to navigate a novel legal standard that is decidedly less protective of the health and safety of women.

In eliminating the federal constitutional right to abortion, the United States Supreme Court's July 24, 2022 decision, Dobbs v. Jackson Women's Health Organization, returned the question of abortion regulation to the "people and their elected representatives." 142 S.Ct. 2228, 2279 (2022). Since the Dobbs decision, pre-Roe state abortion restrictions have taken effect, and various states have passed new legislation restricting abortion access. Many, but not all, of these laws have limited exceptions under which an abortion may be lawfully performed to save the life of the mother.

As we noted in our alert published on August 9, 2022, following the Dobbs decision, EMTALA has become a focal point in the Biden administration's efforts to challenge state attempts to restrict abortion access. EMTALA—a federal statute enacted in 1986—provides that a hospital with an emergency department must provide a medical screening examination to any individual who presents to the emergency department and, if the hospital determines the patient is suffering from an emergency medical condition, either stabilize or appropriately transfer that patient. EMTALA defines emergency medical condition to include conditions that can result in placing the "health of the individual ... in serious jeopardy" as well as "serious impairment to bodily functions" or "serious dysfunction of any bodily organ or part." Hospitals and physicians that violate EMTALA risk the imposition of federal civil monetary penalties; possible exclusion from the Medicare and Medicaid programs; and civil litigation in federal court from any individual who is "directly harmed" by a violation of EMTALA. EMTALA also preempts state laws that "directly conflict[] with the requirements of" the statute.

A few weeks after the Dobbs decision, on July 11, 2022, the United States Department of Health and Human Services (HHS) issued guidance to "remind hospitals of their existing obligation to comply with EMTALA." According to the HHS guidance, the EMTALA statute requires that all patients receive an appropriate screening, stabilization and transfer (if necessary) "irrespective of any state laws or mandates that apply to specific procedures." HHS notes that "an emergency medical condition may include a condition that is likely or certain to become emergent without stabilizing treatment" and mentions certain emergency medical conditions specific to pregnant patients, including ectopic pregnancy, complications of pregnancy loss, and emergent hypertensive disorders, such as preeclampsia with severe features. HHS further states that if a physician believes a pregnant patient has presented with an emergency medical condition, and that abortion is the appropriate treatment to stabilize such patient, "the physician must provide that treatment" in order to comply with EMTALA. Last, relying on EMTALA's preemptive language, HHS states that "when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA's emergency medical condition definition — that state law is preempted."

Also on July 11, 2022, the HHS Secretary issued a letter to health care providers reiterating the HHS guidance and reaffirming the HHS position that physicians have an obligation to perform an abortion under EMTALA notwithstanding contrary state laws.

The HHS guidance and letter prompted two separate lawsuits – one filed by Texas challenging the guidance as outside HHS authority, and the other filed by the United States Department of Justice (DOJ) arguing that EMTALA preempts Idaho's restrictive abortion law.

Texas District Court Invalidates HHS Guidance

On July 14, 2022, Texas Attorney General Ken Paxton filed a lawsuit in the United States District Court for the Northern District of Texas (Lubbock Division) seeking to enjoin the HHS guidance on the grounds that HHS lacked the authority to issue the guidance, particularly without notice-and-comment rulemaking, relying on a number of statutory and constitutional grounds. Texas further claimed that the guidance unlawfully required abortions in situations where Texas outlaws them, infringing on Texas's right to legislate and enforce its own laws. Two conservative provider groups joined the suit—the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), and the Christian Medical and Dental Association (CMDA)—on the grounds that the guidance coerced physicians into providing elective abortions in violation of their constitutional and statutory rights.

On August 24, 2022, the court preliminarily enjoined HHS from enforcing the guidance in Texas and against AAPLOG's members and CMDA's members on the grounds that the guidance "goes well beyond EMTALA's text" and that HHS had improperly issued the guidance without the requisite notice-and-comment rulemaking. Texas v. Becerra, 5:22-CV-185-H (N.D. Tex. Aug. 24, 2022). In particular, the court found that HHS had erred in its interpretation of EMTALA by failing to consider the physician's obligations to the unborn child and that the guidance exceeded the Medicare Act's prohibition of federal interference with the practice of medicine. The court further found that HHS had overstated EMTALA's preemptive effect, as EMTALA only preempts state law requirements that "directly conflict" with EMTALA requirements. Because EMTALA does not resolve circumstances in which both the unborn child and mother face emergencies, the court found it does not preempt state laws with respect to that issue, which remains the purview of physicians, acting in accordance with state law. The court further concluded it was "not impossible" for hospitals and physicians to comply with both Texas law—which seeks to balance the health of the mother and the unborn child in the context of abortion—and EMTALA.

As a result of the court's ruling, Texas' restrictive abortion law is currently in effect (as of August 25, 2022). While this decision will almost certainly be appealed, for the time being, women in Texas may need to wait for their condition to deteriorate significantly before receiving a medically necessary abortion. Specifically, in finding that Texas had standing to challenge the law, the court held that the guidance construes EMTALA to require physicians to perform abortions in situations not permitted by Texas law. In particular, while HHS had interpreted EMTALA to require an abortion in circumstances likely to become emergent without stabilizing treatment or where the woman's health is in "serious jeopardy," Texas prohibits abortions unless a pregnancy-related "physical condition" is currently life-threatening. In addition, while the guidance indicates EMTALA may require an abortion when an emergency medical condition "could . . . result in a serious impairment or dysfunction of bodily functions or any bodily organ," Texas requires that there be "a serious risk of substantial impairment of a major bodily function."

Idaho District Court Sides with HHS

On August 2, 2022, the Biden administration filed a lawsuit in the United States District Court for the District of Idaho challenging the state of Idaho's 'trigger' abortion law. The law criminalizes the provision of abortion services and only provides physicians an affirmative defense in cases where abortion was necessary to "prevent the death of the pregnant woman" and in cases of rape or incest. Passed in 2020, the law was written to become effective 30 days after the "issuance of the judgment in any decision of the United States supreme court that restores to the states their authority to prohibit abortion." Like the Texas law, Idaho's law was set to take effect August 25, 2022.

The crux of the DOJ's complaint is that Idaho's law, in only providing an affirmative defense to "prevent the death of the pregnant woman," directly conflicts with EMTALA and is thus preempted. DOJ argued that "[i]n some circumstances, medical care that a state may characterize as an 'abortion' is necessary emergency stabilizing care that hospitals are required to provide under EMTALA." Examples of emergency conditions mentioned in the complaint include ectopic pregnancy, severe preeclampsia, and a pregnancy complication threatening septic infection or hemorrhage. DOJ argued that Idaho's law directly conflicts with EMTALA because the law only provides an exception for the life of the mother, whereas EMTALA requires a hospital to provide stabilizing treatment to patients experiencing a condition that places their health in serious jeopardy. In other words, Idaho's criminal prohibition extends even to abortions that a physician determines are necessary stabilizing treatment that must be provided under EMTALA.

On August 24, 2022, the court preliminarily enjoined the state of Idaho from enforcing its abortion law "to the extent that statute conflicts with EMTALA-mandated care." United States v. Idaho, 1:22-cv-00329-BLW (D. Idaho Aug. 24, 2022). Notably, the court found that Idaho's law is likely preempted by EMTALA under two separate theories of preemption.

Under the first - Impossibility Preemption - Idaho's law is preempted because it is impossible for physicians to comply with both the Idaho law and EMTALA. According to the court, "where federal law requires the provision of care and state law criminalizes that very care, it is impossible to comply with both laws. Full stop." Furthermore, "the plain language of the statutes demonstrates that EMTALA requires abortions that the affirmative defense would not cover." For example, EMTALA demands abortion care to prevent injuries that are more wide-ranging than death, and "calls for stabilizing treatment, which of course may include abortion care—when harm is probable, when the patient could 'reasonably be expected' to suffer injury." In contrast, to qualify for the affirmative defense under Idaho's law, the patient's death must be imminent or certain absent an abortion.

Under the second theory of preemption - Obstacle Preemption - Idaho's law is preempted because it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." According to the court, "Congress enacted EMTALA primarily because it was "concerned that medically unstable patients [were] not being treated appropriately" and "Congress's clear purpose was to establish a bare minimum of emergency care that would be available to all people in Medicare-funded hospitals." Here, the court found that EMTALA preempts Idaho's law, because the state law would undoubtedly "deter physicians from providing abortions in some emergency situations. That, in turn, would obviously frustrate Congress's intent to ensure adequate emergency care for all patients who turn up in Medicare-funded hospitals."

As a result of the court's ruling, Idaho is enjoined from enforcing its trigger abortion law during the pendency of the underlying lawsuit. However, it should be noted that Idaho has enacted a separate law, titled the Fetal Heartbeat Preborn Child Protection Act, codified at Idaho Code § 18-8801 to 18-8808, that prohibits abortion when a fetal heartbeat has been detected, except in the case of a medical emergency, or in the case of rape.

Conclusion

Particularly in the wake of these two decisions, we expect a protracted legal battle over the extent to which EMTALA obligates providers to provide stabilizing treatment for conditions that threaten the health of the pregnant patient, particularly in states with abortion restrictions that provide limited or no exceptions for the health of the pregnant patient. We also expect courts to continue to examine the specific reference to the "unborn child" in the EMTALA statute. We will continue to monitor these and other similar cases in the post-Dobbs landscape, and provide updates as they arise.

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