Two years ago, after the Supreme Court ruled that there is no constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, Idaho enacted a near-total abortion ban. The United States sued Idaho, arguing that the state’s law is preempted, in part, by a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals that participate in the federal Medicare program to offer “stabilizing treatment,” including abortion, to patients who come to the hospital with an “emergency medical condition.” It asserted that in those limited but critically important situations in which abortion constitutes the necessary “stabilizing treatment” under EMTALA, but Idaho law forbids hospitals from providing it, the Idaho law must give way.

The district court agreed with the United States and preliminarily enjoined Idaho’s anti-abortion law. After the full Ninth Circuit, sitting en banc, declined to stay that injunction, Idaho and its legislature went to the Supreme Court. The Court agreed to stay the injunction temporarily, allowing Idaho’s law to go into effect, and granted certiorari to consider the case on the merits.

CAC filed an amicus brief on behalf of 258 members of Congress in support of the United States. Our brief makes two main points.

First, drawing on the expertise of members of Congress, we explain how the text and history of EMTALA make clear that it mandates that hospitals offer abortion care when abortion constitutes the necessary stabilizing treatment for an individual’s “emergency medical condition.”

EMTALA’s plain text requires the provision of whatever stabilizing treatment is “necessary to assure, within reasonable medical probability” against “material deterioration of the [patient’s] condition.” Congress did not carve out abortion, or any other specific medical procedure, from EMTALA’s requirements. In fact, the one time Congress enacted statutory text expressly addressing both abortion and EMTALA together—in a section of the Affordable Care Act crafted by many amici—it did so to make clear that EMTALA authorizes rather than exempts abortion.

Our brief also urges the Court to reject several arguments advanced by Idaho and its legislature that attempt to contort the text of EMTALA.

We argue that the Court should decline to construe EMTALA based on its alleged purpose of preventing “patient-dumping.” Not only is that purposive argument misplaced in this case, given the lack of ambiguity in EMTALA’s original public meaning, but the statute’s purpose was broader than Idaho claims. EMTALA was not just designed to prevent “patient-dumping”; it also was passed to ensure that hospitals fulfil their basic emergency treatment obligations to the general public.

EMTALA also does not permit physicians to decline to provide stabilizing treatments that states have criminalized. Though the statute says that hospitals must provide only those treatments “within the staff and facilities available at the hospital,” that text simply makes clear that hospitals need only provide services that they have the staff and equipment to provide. Nowhere is there any indication—in the text or history of EMTALA—that Congress meant to exempt doctors from providing a stabilizing treatment they are fully capable of providing and have performed hundreds or even thousands of times because a state has newly imposed criminal punishment on such treatment.

We also argue that EMTALA’s reference to fetuses does not alter its requirement that hospitals provide abortion when necessary to stabilize an individual’s “emergency medical condition.”  The reference to an “unborn child” in the definition of “emergency medical condition” merely expands the scope of EMTALA’s screening and stabilization requirements to cover situations in which the “individual” faces no risk of serious health impairment (or at least, her condition has not progressed to that stage yet), but the individual’s fetus does face such a risk.  In other words, it ensures that a pregnant patient can receive stabilizing care when it is the patient’s fetus, not the patient, that faces a serious health impairment.

Second, after providing that detailed explanation of EMTALA’s scope, our brief explains why EMTALA, enacted pursuant to Congress’s spending authority, should be entitled to preemptive effect.

Crafted against the backdrop of numerous abuses of state authority under the Articles of Confederation, the Spending Clause and the Supremacy Clause are both critical provisions that enable Congress to fulfill its constitutionally mandated duties.  Under the Supremacy Clause, all of Congress’s constitutional laws constitute “the supreme Law of the Land,” and the Supreme Court has repeatedly held that the principle of federal supremacy applies to laws, like EMTALA, passed pursuant to Congress’s spending authority no less than it does to laws enacted pursuant to other enumerated powers.  That effectuates the plain text of the Supremacy Clause, which contains no carve-out for Spending Clause statutes, and is perfectly logical: once federal money is accepted, conditions attached to its receipt become just as binding on the recipient as any other federal law.

Of course, private parties have the choice whether or not to accept federal funding, and the strings attached to it, in the first place.  But it is Congress that our Constitution empowers to offer that choice.  States do not have the power to take that choice away by making it impossible for funding recipients to comply with both the terms of federal spending law and state law.  If that were the case, states could nullify federal laws without restraint—precisely what Idaho has attempted to do in this case.