Health Care

Amicus Briefs Filed in Support of EMTALA, The Federal Right to Emergency Care, Including Abortion, in Idaho v. United States and Moyle v. United States

A broad coalition of amici filed 27 briefs to the U.S. Supreme Court in support of the federal government in the consolidated cases Idaho v. United States and Moyle v. United States, urging continued access to emergency abortion care under the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that requires Medicare-funded hospitals to treat anyone who comes to the ER experiencing an emergency medical condition with stabilizing care. Below is a summary of each of those briefs.

Provider and Public Health Perspective:

Leading professional medical organizations, led by the American College of Obstetricians and Gynecologists, American College of Emergency Physicians, and American Medical Association represented by Democracy Forward and Debevoise & Plimpton, LLPsubmitted a brief explaining how EMTALA has been understood and applied in the practice of emergency medicine and the role that abortion care has long played as stabilizing treatment required by EMTALA.  The brief discusses how the Idaho Law’s criminalization of conduct required by EMTALA places clinicians in an untenable situation of risking criminal liability if they follow their expertise, training, and ethical obligations.  The brief also discusses the clinician exodus the Idaho Law has created, and the impacts that is already having on the availability of care for people throughout Idaho.

The amicus brief from Physicians for Reproductive Health incorporates narratives from physicians in several states to illustrate the dire implications for patients and providers when the provision of necessary stabilizing abortion care is restricted and/or criminalized. Fried, Frank, Harris, Shriver & Jacobson LLP and Physicians for Reproductive Health authored this brief.

An amicus brief submitted by Physicians for Human Rights provides accounts from physicians on the impact of inconsistencies between EMTALA and state abortion bans on pregnant patients’ health and human rights. PHR’s brief includes findings from its report, In Clinicians’ Own Words: How Abortion Bans Impede Emergency Medical Treatment for Pregnant Patients in Idaho, providing examples of how lack of a health exception in Idaho’s abortion ban has caused delays in pregnant patients receiving the recommended standard of care, including, in some cases, as a result of the necessity of being transferred to out-of-state facilities, which resulted in increased morbidity among these patients. The harms caused by the inability to provide abortions necessary to preserve patients’ health have left clinicians unable to comply with the law and their medical ethics, harmed health systems by creating maternity care deserts and increasing disparities in health, and contributed to violations of the U.S.’ international human rights obligations.

The brief—filed by Dr. Caitlin Bernard, Dr. Lauren Miller, Dr. Leilah Zahedi-Spung, and Dr. Nikki Ziteprovides first-hand accounts of how the inability to rely on EMTALA to offer emergency abortion care needed to protect patients’ health forces physicians to violate their medical ethics contrary to EMTALA’s intent. The brief also provides first-hand accounts of how having to delay or withhold abortion care in severe health emergencies forces many physicians to violate conscientious or religious beliefs that forbid them from abandoning individuals in need. The Lawyering Project represents amici on this brief.

The Idaho Coalition for Safe Healthcare is a coalition of 678 physicians and healthcare providers from all across the state of Idaho. Many of the Coalition’s members are obstetricians, gynecologists, labor and delivery nurses, and emergency room doctors who day-in and day-out struggle with how to comply with Idaho’s abortion laws, EMTALA, and their professional obligations to provide the safest, highest standard of care to their patients. The Coalition’s brief seeks to inform the Court about what it is like to be a doctor on the ground in Idaho, facing the conflicts presented by EMTALA and Idaho’s total abortion ban, and about the impact the conflict is having on doctors and patients across Idaho. The brief first demonstrates the direct conflict between Idaho’s total abortion ban and EMTALA through the first-hand stories of doctors treating pregnant patients facing emergencies in Idaho. Second, the brief explains the culture of fear surrounding Idaho’s abortion laws that targets doctors and how that fear has only exacerbated the struggle to try to reconcile the two laws. Finally, the brief details how the irreconcilable conflict between the two laws, and Idaho’s abortion laws more generally, are having a devastating impact on physician retention, the availability of obstetric and gynecological care in the state, and the quality of the care that is available. Stris & Maher and ICSH authored this brief.

St. Luke’s Health System, Ltd. provides the perspective of the only Idaho-based, not- for-profit, community-owned and community-led health system. The brief offers first-hand insight into what transpires in Idaho’s emergency departments and how § 18-622 imperils patient care. St. Luke’s brief illuminates the ways in which this Idaho law’s consequences harm patients, medical professionals, the Idaho healthcare system, and Idaho residents more broadly. Specifically, the brief describes the types of critical cases in which termination of a clinically diagnosable pregnancy is the standard of care necessary to stabilize a patient’s emergency medical condition to prevent significant harm, which could include loss of reproductive or other organs, permanent disability, and severe pain, among others. While § 18-622 prohibits termination except to prevent the death of the mother, EMTALA requires providers to offer stabilizing care even when an emergency medical condition poses severe health risks short of death. St. Luke’s explains how health care providers now find themselves mired in legal debates and living with the fear of criminal prosecution should they need to terminate a pregnancy for the sake of their patient’s health; from a physician’s perspective, it is not always easy to tell—even subjectively and in good faith—when a patient’s life, as opposed to her health, is imperiled. Since enactment of the law at issue, 22% of Idaho obstetricians have stopped practicing in the state, and over half of Idaho OBGYNs surveyed in 2023 were considering leaving Idaho; of those, 96% said they would reconsider or very likely stay if a health exception was added to the state’s abortion law. As a result of provider shortages, hospitals are simply shutting down their labor and delivery services. In a state with vast distances between hospitals, many communities now have no labor and delivery services. Today, only three full-time and two part-time maternal fetal medicine doctors (those who care for high-risk pregnancies) remain in all of Idaho. St. Luke’s points out that, even if the health of the pregnant patient is in serious jeopardy—where she may suffer a lifetime of debilitating complications and excruciating pain if she does not receive an emergency termination—so long as the suffering is short of death, § 18- 622 provides no exception. EMTALA exists to prevent this result.

The American Hospital Association, American Association of Medical Colleges, and America’s Essential Hospitals filed a brief explaining why “Idaho’s decision to criminalize medically necessary and federally mandated emergency care carries profound consequences,” including interfering with the exercise of expert medical judgments, chilling the provision of even lawful care, and intruding on the patient-physician relationship, in emergency circumstances where “hesitation can mean the difference between life and death.” The brief asks the Court to “protect emergency providers who exercise their professional judgment as federal law requires and hold that § 18-622 is preempted because it forbids stabilizing emergency services that fall within the ambit of EMTALA.”

A coalition of public health organizations, including the American Public Health Association, the Robert Wood Johnson Foundation, the Network for Public Health Law, and the American Medical Women’s Association, as well as a group of 133 distinguished deans and professors of disciplines spanning the health professions, public health, and health law and policy have filed a brief on the vital role played by federal policy in shaping the US health care system, the history, purpose, and text of EMTALA and its implementing regulations, and how Congress used its spending powers to ensure timely, appropriate emergency care for all people in the United States, including pregnant women.  Foley Hoag LLP represents amici on this brief.

Harms to Patients & Impact on Communities:

The amicus brief filed by the National Women’s Law Center, In Our Own Voice: National Black Women’s Reproductive Justice Agenda, National Asian Pacific American Women’s Forum, the National Latina Institute for Reproductive Justice, and 98 other organizations explains the devastation that would be wrought by an atextual holding that states can carve pregnant patients alone out of the full scope of EMTALA’s protections. The brief explains that EMTALA’s plain text has always required hospitals to provide emergency abortion care when necessary to stabilize a pregnant patient’s emergency medical condition, and a decision by this Court to gut EMTALA’s protections for pregnant people would deepen the United States’ maternal health crisis, particularly for Black, Indigenous, immigrant, rural, and low-income communities. The brief urges the Court to reject Idaho’s novel arguments, which would decimate treatment options for pregnant patients experiencing emergencies and further accelerate the exodus of health care providers from areas already considered pregnancy-care deserts, making pregnancy in this country even more dangerous than it already is. Cohen Milstein Sellers & Toll PLLC and the National Women’s Law Center authored this brief.

The Center for Reproductive Rights submits an amicus brief on behalf of women in Idaho, Texas, and other states around the country with abortion bans who have been denied stabilizing abortion care in hospitals. Because Idaho has claimed, without evidence, that EMTALA frustrates state law intended to protect human life, Amici submit sworn evidence of their own experiences showing that, in fact, state abortion bans have put their lives at risk without any regard for their health or future fertility.

Leading disability rights organizations and scholars highlight the barriers to accessing medical care and increased prevalence of medical complications faced by people with disabilities, both of which make it more likely that disabled people will need the emergency abortion care that EMTALA protects but Idaho’s abortion ban criminalizes.  The brief argues that unless Idaho’s ban is preempted, it will frustrate Congress’s core purpose in enacting EMTALA: to ensure that hospitals provide emergency medical care to those who most need it and are least likely to be able to access it. Lawyers with Covington and Burling LLP, Disability Rights Education & Defense Fund, Legal Voice, and Women Enabled International authored this brief

NYU School of Law Reproductive Justice Clinic, Pregnancy Justice, and If/When/How, non-profit legal advocacy organizations who defend the rights of pregnant people from pregnancy criminalization, highlight that Idaho’s criminal abortion ban attempts to upend the 40-year old status quo of EMTALA by assigning a fetus “patient” status through misinterpreting EMTALA’s references to an “unborn child.” Rather than embrace Idaho’s misogynist carve out that diminishes pregnant women to second-class status and compels them to put their health or lives at risk in the desperate moments of a healthcare crisis, EMTALA’s protections make pregnant women and all people who can become pregnant the sole rights-holders and arbiters of their reproductive health care decisions. The brief argues that EMTALA must continue to preempt Idaho’s total abortion ban to preserve women’s bodily and social autonomy, prevent the spread of racially disparate maternal mortality rates in similar ban states, and continue the storied history of landmark Federal Civil Rights legislation countering State civil rights abuses.

Sanctuary for Families and a coalition of organizations advocating on behalf of survivors of gender-based violence urge the Court to consider the compounding effect of the harms caused by abortion bans that conflict with EMTALA for pregnant patients who arrive at the emergency department with emergency medical conditions resulting from physical abuse. Homicide is the leading cause of death for pregnant women in the United States. The Court should not permit states to further endanger pregnant women’s lives and empower their abusers by denying stabilizing abortion care in the narrow but critical circumstances in which EMTALA requires it to prevent the patient’s death or serious harm to her health. Cleary Gottlieb Steen & Hamilton LLP and Sanctuary for Families authored this brief.

The National Network of Abortion Funds (NNAF) highlights the perspectives of abortion funds and the latest data regarding abortion access to explain the significant logistical, financial, and structural barriers that many pregnant people face to get the abortions they need and want. Those barriers are heightened—and often insurmountable—for people experiencing medical emergencies who are denied life-saving or health-preserving abortions in the state where they live. Pacifica Law Group and NNAF authored this brief.

Chicago Abortion Fund’s (CAF) narrative-based brief shares its unique perspective from co-founding and running the Complex Abortion Regional Line for Access (CARLA), a joint effort between CAF and four Chicago hospitals.  CAF’s brief includes narratives from physicians and CAF staff members, including CARLA’s medical co-directors, explaining how the failure to provide emergency abortion care causes harm to patients. Several of the narratives address challenges in traveling for care that are particularly felt by low-income individuals and people of color.  The brief also shares important narratives from sibling funds in restrictive states about the challenges of traveling for emergency care.

The Global Justice Center, Amnesty International, Human Rights Watch, and the Ipas Impact Network highlights the human rights of pregnant Idahoans. By denying abortions in situations contemplated by EMTALA (emergencies/patients are presenting needing to be stabilized), the Idaho law will violate patients’ fundamental human rights. In particular the rights to life, health, privacy, non-discrimination and freedom from torture and other cruel, inhuman or degrading treatment. The US has legal obligations to respect, protect, and fulfill these human rights.

Federal, State, and Local Governments and Officials:

258 Members of Congress, who have a strong interest in protecting the supremacy of the federal laws they enact, argue that all laws passed by Congress are entitled to preemptive effect—regardless of their source of constitutional authority—and that the text and history of EMTALA make clear that hospitals must provide abortion care when that care is the “necessary stabilizing treatment” for a patient’s “emergency medical condition.” Because Idaho’s abortion ban contains no clear exceptions for the emergency medical conditions covered by EMTALA, physicians are forced to wait until their patients are on the verge of death before providing abortion care. Federal law does not allow Idaho to endanger the lives of its residents in this way. To the extent that the Idaho abortion ban conflicts with EMTALA, it must yield to the federal law. The Constitutional Accountability Center represents amici on this brief.

An amicus brief submitted by former officials at HHS, which administers and enforces EMTALA, explains that HHS has long understood that EMTALA’s stabilizing-care requirement sets out a minimum standard of care.  Further, HHS has long understood that stabilizing care under EMTALA can include abortion when necessary to stabilize an emergency medical condition. Mayer Brown LLP represents the amici on this brief.

California and New York authored a brief on behalf of a group of twenty-four states that argues that EMTALA does require and always has required a hospital to provide abortion care when it is the necessary treatment to stabilize a pregnant person experiencing an emergency medical condition. Allowing states with extreme abortion bans to undermine this essential requirement under federal law would force many pregnant patients to travel to states like amici for emergency abortion care, likely causing such patients to face heightened health risks as a result of being denied such care in their home States, and aggravating existing healthcare stresses, threatening worse health outcomes for everyone who seeks emergency care.

The County of Santa Clara authored a brief on behalf of a group of cities and counties that maintain public health departments, own or operate hospitals or clinics, or otherwise fund healthcare services.  The brief describes how a decision stripping away EMTALA’s protections would harm local governments and the communities they serve.  Not only would such a decision have severe consequences for individual patient health, it would also result in an increased burden on safety net providers in states where EMTALA has not been curtailed, which would in turn undermine public health more broadly.

Washtenaw County Prosecuting Attorney Eli Savit, represented by Public Rights Project and the law firm of Selendy Gay Ellsberg PLLC, led a coalition of current and former local prosecutors and law enforcement leaders. The brief argues that EMTALA’s preemption is needed to ensure that local law enforcement is not required to evaluate the necessity of performing an abortion in an emergency. As the brief explains, doctors have made clear that determining when a medical crisis reaches the artificial legal threshold of life-or-death is practically impossible. Thus, it is particularly dangerous to ask medically untrained criminal justice actors to substitute their judgment for that of medical professionals acting in emergency situations.

Legal Scholars and Experts:

Legal scholars urge the Court to apply ordinary statutory interpretation to conclude that EMTALA’s “stabilization” requirement encompasses terminating a pregnancy in certain medical emergencies. Arnold & Porter Kaye Scholer LLP represents amici on this brief.

Procedure and jurisdiction scholars argue that the Court should dismiss the case as improvidently granted in light of the unique procedural and factual posture of this case. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and Professor Kent Greenfield authored this brief.

Attorneys at the Women’s Law Project filed an amicus brief on behalf of three law professors who have taught, practiced, and written extensively about abortion law and the post-Dobbs legal landscape, in support of the federal government’s argument that EMTALA requires Medicare-funded hospitals to offer necessary stabilizing treatment, including abortion, regardless of state laws restricting or banning abortion. In this brief, amici argue that Dobbs should be overturned as it has already proven to be unworkable, highlighting the numerous cases of pregnant people denied lifesaving abortion at the expense of their health, lives, and reproductive futures and destabilizing effect Dobbs has created in other areas of law.

The American Civil Liberties Union filed a brief arguing that a textualist analysis compels the conclusion that EMTALA requires hospitals to provide abortion care when necessary to stabilize an emergency condition, preempting any state law to the contrary, and that nothing in the Supreme Court’s decision in Dobbs disturbs this longstanding statutory mandate. Moreover, with over 25 years’ experience litigating challenges seeking to vindicate the rights guaranteed by EMTALA generally, and with respect to emergency abortion care, specifically, the ACLU brief details how Congress, the federal government, and the courts have long recognized EMTALA to require emergency abortion care. ACLU, ACLU of Idaho, and the Cooley Law Firm authored this brief.

Public Citizen filed an amicus brief that argues that the Supremacy Clause does not exclude laws enacted pursuant to Congress’s spending power and that such a law, like every other federal law, is entitled to preemptive effect. EMTALA imposes a duty on federally-funded hospitals to provide stabilizing treatment to a person experiencing an emergency medical condition, and a state law that bars a hospital from providing stabilizing treatment that the hospital has the staff and facilities to provide conflicts with EMTALA and is therefore preempted. To hold otherwise would be to enable states to undermine federal programs by preventing in-state participants from accepting federal funding conditions or by overriding those conditions altogether.

Business Perspective: 

Amalgamated Bank, Argent, Bumble, KraveBeauty, Levi Strauss & Co, Lyft, Match, Small Business Majority, US Women’s Chamber of Commerce, and Yelp argue that reproductive healthcare restrictions are bad for the economy and bad for business. They explain how upholding restrictions on medical judgments for treating pregnant women, like the restrictions imposed by the State of Idaho, will result in maternity care deserts, a lack of diversity in the workforce, and an inability to recruit and retain top talent when women and their families are forced to make family and career decisions based on where they can be guaranteed proper healthcare. Amici therefore favor preserving the independence of medical judgments as authorized under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) so pregnant women can obtain the emergency care they need.  Reed Smith served as counsel for amici on this brief.

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