Supreme Court Allows Emergency Abortions in Idaho but Leaves Litigation Unresolved
Legal Sidebari
Supreme Court Allows Emergency Abortions
in Idaho but Leaves Litigation Unresolved
July 12, 2024
On June 27, 2024, the Supreme Court, in a one-sentence, unsigned (per curiam) order accompanied by
four concurring and/or dissenting opinions, concluded that it had “improvidently granted” review before
judgment in Moyle v. United States, a case about access to emergency abortion services. In January 2024,
the Court agreed, on the State of Idaho’s application, to review one question: whether the Emergency
Medical Treatment and Labor Act (EMTALA), a federal law that generally requires Medicare-
participating hospitals to provide emergency care to any individual regardless of their ability to pay,
preempts—or supersedes—parts of an Idaho law criminalizing the performance of many abortions. At the
time, the Court also stayed the district court’s preliminary injunction, allowing the state law to go into
effect in full. Under its per curiam order, however, the Court determined that it should not have agreed to
hear the case at this juncture, and the litigation is to resume in the lower courts. The order also reinstated
the district court’s preliminary junction, blocking Idaho from enforcing its abortion restriction in
emergency circumstances in which a physician determines that abortion is the necessary stabilizing care.
This Sidebar provides background on the case’s litigation history, an overview of the concurring and/or
dissenting opinions that accompanied the order, and certain observations and considerations for Congress.
Background
Idaho’s Abortion Restriction and HHS’s Guidance on EMTALA
After the Supreme Court, in June 2022, decided Dobbs v. Jackson Women’s Health Organization, in
which the Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v.
Casey and held that the U.S. Constitution does not confer a right to an abortion, abortion access
restrictions took effect or were enacted in many states.
In Idaho, the state legislature enacted several laws aimed at restricting abortion access. Among them, the
state legislature added Idaho Code § 18-622, or Section 622, which generally makes performance of an
abortion—at any pregnancy stage—a felony punishable by two to five years in prison. The initially
enacted version of Section 622 generally defined abortion as the use of any means to intentionally
terminate a “clinically diagnosable pregnancy” and did not exclude acts to address certain pregnancy
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complications such as ectopic pregnancies. The law also did not provide any exceptions to the abortion
ban. Section 622 instead provided two affirmative defenses that physicians could invoke upon
prosecution. First, an accused physician could have avoided conviction by proving, by a preponderance of
evidence, that the abortion, in the physician’s good faith medical judgment, “was necessary to prevent the
death of the pregnant woman” and was performed in a manner that “provided the best opportunity for the
unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that
manner would have posed a greater risk of the death of the pregnant woman.” Second, an accused
physician could have asserted an affirmative defense based on a reported case of rape or incest.
As part of the Biden Administration’s response to state abortion restrictions, the Department of Health
and Human Services (HHS) issued a July 2022 guidance document (July 2022 HHS Guidance, or
Guidance) regarding EMTALA. Under this federal law, hospitals—as a condition of receiving federal
Medicare funding—must provide services to any individual presenting at an emergency department.
Congress enacted EMTALA in 1986 amid reports of hospital emergency rooms refusing to treat poor or
uninsured patients. The law generally requires Medicare-participating hospitals with emergency
departments (1) to provide an appropriate medical screening examination to an individual requesting
examination or treatment to determine whether an emergency medical condition exists; and (2) if such a
condition exists, to provide necessary treatment to stabilize the individual before any transfer can take
place. EMTALA defines an emergency medical condition, in relevant part, as
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 individual (or, with respect to a pregnant woman, the health of the
woman or her unborn child) in serious jeopardy, or (ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part.
EMTALA includes an express preemption provision (42 U.S.C. § 1395dd(f)) stating that EMTALA does
“not preempt any State or local law requirement, except to the extent that the requirement directly
conflicts with a requirement of this section.”
The July 2022 HHS Guidance states that, under EMTALA’s requirements, if a physician believes that a
pregnant patient presenting at an emergency department is experiencing a condition that is likely or
certain to become emergent, and that abortion is the stabilizing treatment necessary to resolve that
condition, the physician must provide that treatment. Examples the HHS Guidance provides of relevant
conditions include “ectopic pregnancy, complications of pregnancy loss, or emergency hypertensive
disorders.” The HHS Guidance further provides that a state-level abortion restriction that “does not
include an exception for the life of the pregnant person—or draws the exception more narrowly than
EMTALA’s emergency condition definition”—is preempted by EMTALA.
Litigation over Idaho’s Abortion Restriction
In August 2022, the United States sued the State of Idaho, asserting that aspects of the state’s abortion ban
conflict with and are preempted by EMTALA. Later that month, the U.S. District Court for the District of
Idaho agreed that the United States was likely to succeed on this claim and granted the United States’
motion for a preliminary injunction, blocking the state from enforcing its abortion ban to the extent it
conflicts with EMTALA. In particular, the district court found that EMTALA requires abortions as
stabilizing treatment in certain circumstances not covered by the state law’s affirmative defenses.
Whereas EMTALA requires an abortion when physicians “reasonably expect” the procedure to prevent
serious harm, the court reasoned, the state law permits an abortion only when abortion is necessary to
prevent the patient’s death—that is, when death is imminent or certain absent an abortion. Section 622,
the court continued, also conflicts with EMTALA by deterring physicians from providing abortions as
stabilizing treatment in some emergency situations, such that the Idaho law “stands as a clear obstacle” to
Congress’s intent to ensure adequate emergency care through EMTALA.
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In January 2023, while Idaho asked the district court to reconsider its decision, the Idaho Supreme Court
interpreted Section 622’s necessary-to-prevent-death defense in a separate case. The state supreme court
held, among other conclusions, that the affirmative defense is narrower than a broader “‘medical
emergency’ exception” contained in a related state abortion restriction that more closely mirrors
EMTALA’s text. The state supreme court, however, also held that the phrase “necessary to prevent the
death of a pregnant woman” sets forth a “clearly subjective standard” that focuses on the physician’s
“‘good faith medical judgment’ on whether [an] abortion was ‘necessary to prevent the death of the
pregnant woman.’” This subjective “good faith” standard, according to the court, does not require a
physician to demonstrate “a ‘medical consensus’ on what is ‘necessary’ to prevent” death, or a “‘certain
percent chance’ . . . that death will occur.” The district court declined to reconsider its preliminary
injunction order based on the Idaho Supreme Court’s decision, concluding that the state supreme court’s
decision supported issuance of the preliminary injunction.
In April 2023, while Idaho’s appeal of the preliminary injunction order was pending before the Ninth
Circuit, the state legislature amended Section 622 and its related definitions. Among other changes, the
provision’s two affirmative defenses were amended to be statutory exceptions. As a practical matter, this
change means that in the event of a prosecution, the burden of proof lies with the state to prove that the
exception does not apply, rather than on an accused physician, to prove that he or she is entitled to this
defense. The state legislature also amended the definition of abortion to exclude several treatments, such
as “the removal of an ectopic or molar pregnancy.”
In September 2023, a three-judge panel of the Ninth Circuit disagreed with the district court and stayed
the preliminary injunction, allowing Section 622 to take effect in full. In the appellate court’s view, the
state law does not “directly conflict” with EMTALA because it is not impossible to comply with both
laws. According to the court, EMTALA’s “clear and manifest” purpose was to “ensure that hospitals do
not refuse essential emergency care because of a patient’s inability to pay.” EMTALA, in the court’s view,
“does not impose any standards of care on the practice of medicine.” In addition, the court continued,
even if EMTALA requires abortions as “stabilizing treatment” in limited circumstances, Section 622 still
does not conflict with EMTALA because “EMTALA would not require abortions that are punishable by
section 622.” In the court’s view, to the extent EMTALA requires abortions in certain circumstances, such
circumstances fall within Section 622’s necessary-to-prevent-death exception—as amended by the Idaho
Legislature and as interpreted by Idaho’s Supreme Court. The court further concluded that Section 622
does not pose an obstacle to the purposes of EMTALA because Section 622 does not “interfere with the
provision of emergency medical services to indigent patients.”
The Ninth Circuit granted the United States’ petition to rehear the case before the full court and vacated
the stay order pursuant to court rules, reinstating the district court’s preliminary injunction. The state then
sought a stay of the preliminary injunction before the Supreme Court, which granted the application and
agreed to treat it as a petition for certiorari before judgment, which the Court grants in cases of
“imperative public importance.” As a result of the Supreme Court order, Section 622 was allowed to go
into full effect while the Court considered whether EMTALA preempts Idaho’s abortion law in
circumstances in which terminating a pregnancy would be needed for emergency stabilization treatment.
Supreme Court’s Order and Accompanying Opinions
On June 27, 2024, the Supreme Court issued a per curiam order dismissing Idaho’s petition as
improvidently granted and lifting the Court’s stay on the preliminary injunction. The Court did not issue
an opinion discussing the order’s reasoning, but all the Justices wrote or joined one of four opinions
concurring and/or dissenting in the result.
Justice Kagan wrote an opinion joined by Justice Sotomayor, concurring in the decision because, in her
view, EMTALA and the Idaho law conflict in “cases in which continuing a pregnancy does not put a
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woman’s life in danger, but still places her at risk of grave health consequences, including loss of
fertility.” Idaho’s argument that there is no conflict because EMTALA “never require[s] a hospital to
‘offer medical treatments that violate state law,’ even when they are needed to prevent substantial health
harms,” is one that, in Justice Kagan’s view, is unlikely to succeed on the merits. Accordingly, she
reasoned that the state’s arguments “never justified emergency relief or our early consideration of this
dispute.” The Court’s order, according to Justice Kagan, “puts the case back where it belongs,” where the
district court’s decision “now can go to the Court of Appeals, and the District Court can afterward
consider further evidence and arguments for the purpose of final judgment.”
In a part of her opinion also joined by Justice Jackson, Justice Kagan expressly rejects the argument that
EMTALA never requires hospitals to provide an abortion, no matter how much that procedure is needed
to prevent grave physical harm. In her view, EMTALA “unambiguously requires that a Medicare-funded
hospital provide whatever medical treatment is necessary to stabilize a health emergency,” including
abortion in rare circumstances. Justice Kagan rejects Justice Alito’s view that EMTALA’s reference to an
“unborn child” in its definition of emergency medical condition alters this obligation for a pregnant
woman. In her view, “unborn child” was added there to ensure that “a woman with no health risks of her
own can demand emergency-room treatment if her fetus is in peril” and “does not displace the hospital’s
duty to a woman whose life or health is in jeopardy and who needs an abortion to stabilize her condition.”
Justice Barrett wrote an opinion, joined by Chief Justice Roberts and Justice Kavanaugh, concurring in
the decision because, in her view, “the shape of these cases has substantially shifted” since the Court
granted certiorari and “the parties’ positions are still evolving.” In her view, developments since the
district court’s preliminary injunction order, including amendments of the Idaho law by the state
legislature and interpretation by the state supreme court, made the scope of the parties’ dispute “unclear.”
In particular, Justice Barrett noted that with respect to the parties’ disputes over “whether EMTALA
requires hospitals to provide abortions . . . as necessary stabilizing care,” the United States’ interpretation
of EMTALA’s requirements “is far more modest than it appeared” when the Court granted certiorari and
stay. Similarly, in her view, the state’s position on the scope of Section 622’s exception has also evolved
to encompass more emergency circumstances. She also noted that the state raised a “difficult and
consequential argument” for the first time before the Court regarding “whether EMTALA, as a statute
enacted under Congress’s spending power and that operates on private parties, can preempt state law.”
This issue, she explained, should be addressed by the lower courts in the first instance. Accordingly, she
concludes the case is not appropriate for early resolution and should be permitted “to run [its] course in
the courts below.”
Justice Barrett further explained that, in her view, lifting the stay on the injunction is also appropriate
because the United States’ position before the Court undercuts the conclusion that Idaho would suffer
irreparable harm under the preliminary injunction. She noted, for instance, that the United States clarified
that abortion is never required as a stabilizing treatment for mental health conditions and that federal
conscience protections apply to both hospitals and individual physicians in the EMTALA context.
Accordingly, she found that the injunction “will not stop Idaho from enforcing its law in the vast majority
of circumstances.”
Justice Jackson wrote an opinion concurring in part with the order to lift the Supreme Court’s stay
because in her view, the stay should not have been entered in the first place. There is, in her view, a
“substantial and significant” conflict between EMTALA and Section 622. In particular, she reasoned,
whereas EMTALA requires hospitals to “provide an emergency abortion that is reasonably necessary to
preserve a patient’s health,” Section 622 criminalizes the provision of this care. Accordingly, in her view,
the district court correctly issued the injunction because the answer to the preemption question is “quite
clear”: “Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause,
Idaho’s law is pre-empted.” Justice Jackson, however, dissented with the decision to dismiss the grant of
certiorari because she believes the preemption question is ready for the Supreme Court to resolve on the
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merits in the United States’ favor. In her view, the parties’ material representations regarding the issue
have been consistent through court proceedings, and no representation made to the Court “reduces the
conflict between state and federal law to the point that a ruling from this Court is no longer warranted.”
Also, in her view, “the need for a clear answer to the Supremacy Clause question” has only increased
since the Court granted certiorari,” given the likely recurrence of this question and the practical impact of
the legal uncertainties on doctors and pregnant patients.
Justice Alito wrote a dissenting opinion joined by Justice Thomas and joined in part by Justice Gorsuch.
Justice Alito, like Justice Jackson, disagreed with the decision to dismiss the grant of certiorari and
believed that the Supreme Court should have examined the merits of the case, but unlike her, he argued
that the Court should have concluded that EMTALA does not preempt Idaho law. By including a
reference to “the health of the woman or her unborn child” in the definition of “emergency medical
condition,” EMTALA, according to Justice Alito, “requires the hospital at every stage to protect an
‘unborn child’ from harm.” In his view, the law’s text thus “shows clearly that it does not require hospitals
to perform abortions in violation of Idaho law.” This conclusion is, according to Justice Alito, further
buttressed by the fact that EMTALA is an exercise of Congress’s spending power. Any spending
conditions attached to the receipt of federal money, he reasoned, must be set out unambiguously, and “it is
beyond dispute that such a requirement is not unambiguously clear” because “[t]he statute does not
mention abortion.” Justice Alito noted that although it is unnecessary at this juncture to decide whether
the Idaho State legislature is correct that EMTALA cannot preempt state criminal or public health law as a
Spending Clause legislation operating on hospitals, he stated, in his view, that the United States had not
identified any prior Court decision that rejects this argument. In the part of his dissent joined only by
Justice Thomas, Justice Alito also dissented from the decision to lift the Court’s stay of the preliminary
injunction. In his view, the United States had not demonstrated that it is likely to succeed on the merits of
its claims, and the state will be irreparably harmed by being enjoined from effectuating its statute.
Observations and Considerations for Congress
Following the per curiam order, litigation in Moyle is expected to continue in the lower courts where it
left off: before the en banc Ninth Circuit to review the district court’s preliminary injunction. The parties’
litigating positions will likely by shaped by the opinions that accompanied the Moyle order. The opinions
show that six of the nine Justices appear to have reached a conclusion as to the merits of the preemption
question. Justices Kagan, Sotomayor, and Jackson concluded that EMTALA requires hospitals to provide
abortions as necessary stabilizing care in some emergency circumstances and preempts Section 622 to the
extent that the state’s necessary-to-prevent-death exception prohibits EMTALA-required abortions.
Justices Alito, Thomas, and Gorsuch, on the other hand, concluded that EMTALA does not preempt
Section 622 because the federal law does not require the provision of abortions prohibited by state law.
The remaining three Justices—Justices Barrett and Kavanaugh and Chief Justice Roberts—indicated that
their resolution of the preemption question may focus on at least two outstanding questions that, in their
view, have not been sufficiently litigated below in the lower courts. The first question is whether, as a
constitutional matter, a state law may be preempted by a federal statute that regulates private entities
through Congress’s Spending Clause power. This is a question that, if the Court resolves in the negative,
would have implications beyond EMTALA. Several other Medicare requirements, for example, include
express preemption provisions that specify circumstances under which conflicting state laws are
superseded. The second question concerns the degree of overlap between any EMTALA-required abortion
care and Section 622’s necessary-to-prevent-death exception. On this question, both Justice Barrett’s and
Justice Kagan’s concurring opinions appear to indicate that additional factfinding through evidentiary
hearings may be appropriate as the case proceeds through the merits stage in the lower courts.
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The three undecided Justices’ interest in these two questions may also have implications for the pending
petition for certiorari in Texas v. Becerra, a case that raises a similar question regarding whether
EMTALA preempts Texas’s abortion restriction, but on a different posture. In Texas, the State of Texas
and two organizations representing physicians opposed to elective abortions sued HHS to enjoin the
federal government’s enforcement of the July 2022 HHS Guidance. The plaintiffs assert, among other
arguments, that the HHS Guidance exceeds HHS’s statutory authority and was improperly issued without
the requisite notice-and-comment process. In Texas, the Fifth Circuit affirmed the district court’s grant of
a permanent injunction in favor of the plaintiff that blocked the federal government from enforcing the
Guidance in Texas and against the plaintiffs. Among other things, the Fifth Circuit held that the Guidance,
which requires physicians to provide an abortion when that care is the necessary stabilizing treatment for
an emergency condition, exceeds HHS’s statutory authority because “EMTALA does not govern the
practice of medicine,” which is governed by state laws. Accordingly, in the court’s view, “EMTALA does
not mandate medical treatments, let alone abortion care, nor does it preempt Texas law.”
The lower courts in Texas did not address whether a state law may be preempted by a Spending Clause
condition on private parties. The parties in Texas also did not focus their preemption analysis on the
relative scope of any EMTALA requirements related to abortions and Texas’s abortion restrictions, which
include an exception that may be broader than Idaho’s necessary-to-prevent-death exception. Under the
Texas exception, physicians may perform an abortion if, in their reasonable medical judgment, a pregnant
woman “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy
that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily
function unless the abortion is performed or induced.”
The United States filed a petition for certiorari in April 2024 seeking review of the Fifth Circuit’s
decision, but the initial petition asked the Court to defer the petition pending the disposition of Moyle. It
is unclear, given Moyle’s per curiam order and accompanying split opinions, whether the Court will grant
the petition at this time. While there may be enough Justices who are ready to resolve the preemption
question to vote in favor of granting the petition, the lack of lower court proceedings in Texas on the two
questions identified by Justice Barrett’s concurrence in Moyle may also preclude the Court from
ultimately resolving the preemption question in Texas based on the case’s current posture. The Supreme
Court had requested additional briefing that addresses the parties’ substantive positions regarding the
petition in light of Moyle, and that additional briefing may further inform the Court’s decision on the
Texas petition.
Justice Barrett’s concurrence in Moyle also has potential implications for Congress. To the extent
Congress determines it is appropriate to clarify EMTALA’s intended scope and preemptive effect while
Moyle and Texas make their way through the courts, the validity of such amendments would be subject to
any Supreme Court decision regarding Congress’s power to preempt state laws through Spending Clause
legislation on private entities, if the Court in fact considers and resolves that question in the future. If the
Court resolves the cases without addressing that question, or if the Court concludes that EMTALA may
preempt state laws, Congress would continue to have leeway to clarify EMTALA’s scope and preemptive
effect, given that the “ultimate touchstone” of preemption analysis is congressional intent.
Author Information
Wen W. Shen
Legislative Attorney
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