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Emergency abortion care question could be headed to the Supreme Court
Rulings out of Idaho and Texas set the stage for a new state-federal conflict over abortion. Also: Biden's student loan forgiveness plan, at long last.
The question of whether the federal government can require most hospitals to provide emergency abortion care when needed could be headed to the Supreme Court in short order — even over the summer before the justices start their next term in October.
The possibility of the issue reaching the high court quickly was made much more likely when a dueling set of court rulings on the Biden administration’s emergency care abortion guidance were issued within 24 hours of one another on Tuesday and Wednesday of this week.
As discussed previously at Law Dork, here’s the underlying issue that we’re dealing with:
The Health and Human Services Department’s post-Dobbs EMTALA guidance … states that hospitals subject to EMTALA (basically, all that receive Medicare funds) … must provide appropriate “medical screening examination” and, if an “emergency medical condition” is found, then also provide “stabilizing treatment” or “an appropriate transfer” to a hospital that can do so. If the necessary stabilizing treatment is an abortion, “the physician must provide that treatment,” the guidance states. Finally, the guidance makes clear repeatedly that EMTALA preempts state laws that conflict with EMTALA obligations, including state abortion bans.
Late Tuesday, a federal judge in Texas ruled that EMTALA cannot be read to limit Texas’s abortion trigger ban, which went into effect today, in part because EMTALA does not directly address abortion but does refer to a pregnant person’s “unborn child.” As U.S. District Judge James Wesley Hendrix, a Trump appointee, put it:
[T]he question at issue here is whether Congress has directly addressed whether physicians must perform abortions when they believe that it would resolve a pregnant woman’s emergency medical condition, irrespective of the unborn child’s health and state law. Congress has not.
Hendrix also ruled that the guidance wouldn’t be permissible because the government did not — as would be required for most new rules — provide an opportunity for public comment. Ultimately, Hendrix barred the federal government from enforcing EMTALA against Texas and members of two health-care provider organizations that oppose abortion.
Then, on Wednesday evening, a federal judge in Idaho issued, in effect, the opposite ruling, finding that obligations of health-care providers under EMTALA and Idaho’s trigger ban, which also went into effect today, would conflict. U.S. District Judge B. Lynn Winmill, a Clinton appointee, wrote in part:
If Idaho’s criminal abortion statute is allowed to go fully into effect, federal law will be significantly frustrated …. Most significantly, allowing the criminal abortion ban to take effect, without a cutout for EMTALA-required care, would inject tremendous uncertainty into precisely what care is required (and permitted) for pregnant patients who present in Medicare-funded emergency rooms with emergency medical conditions.
Ultimately, he found that the Supremacy Clause and “basic preemption principles” controlled the question of how to resolve the conflict, and Winmill barred Idaho from enforcing its abortion ban “as applied to medical care required by” EMTALA, which was what the Justice Department was seeking.
Both of these rulings were preliminary injunctions, meaning that, technically, they were determinations of who was likely to prevail in full litigation (among other factors), but, in effect with most litigation like this, such rulings go up on appeal and resolve the main legal questions at issue in the case — here, whether the federal government can employ EMTALA to guarantee that emergency abortion care is available in most hospitals when needed.
It is not clear yet what is going to happen next, but, if Idaho appeals, that case would go to the reliably liberal U.S. Court of Appeals for the 9th Circuit, which would likely affirm Winmill’s ruling. If the Justice Department appeals the ruling out of Texas, that case would go to the U.S. Court of Appeals for the 5th Circuit, which is a step beyond conservative depending on the panel and would almost certainly affirm Hendrix’s ruling.
At that point, either or both could make a request to the Supreme Court — perhaps even on the shadow docket, if the appeal to the circuit courts are actually seeking a stay of the district court’s ruling during an appeal. If that happens, the justices could easily be deciding an EMTALA-related case in September, before the new term even begins.
One final note, about the Texas ruling. Hendrix at one point wrote the following:
[T]he Guidance is a federal agency’s assertion of authority to regulate matters that the states believed they controlled. The Supreme Court in Dobbs returned “the authority to regulate abortion” to “the people and their elected representatives.” Dobbs, 142 S. Ct. at 2279. With the federal constitutional bar removed, states like Texas naturally believed that they could limit abortion to emergency situations as they determined was proper.
This really cuts corners on engaging with a big question left after Dobbs. There is no federal constitutional right to an abortion under Dobbs, but the opinion did not address federal legislation — or executive action — and how that would be viewed.
Of course, there are ever more limits being conveniently placed on executive power by the U.S. Supreme Court, so it’s not clear how far executive action could go. And the court has found limits even to federal congressional legislative authority, so that could be up to question, too. But, Dobbs — while discussing state’s laws around abortion — did not directly address federal laws and policies. And yet, Hendrix — like Texas — acts as if the Supreme Court held in Dobbs that only “elected representatives” who have a role to play are state elected representatives.
Law Dork, with Chris Geidner, is independent, reader-supported journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a free or paid subscriber today.
STUDENTS LOANS, A STEP FORWARD: On Wednesday, President Joe Biden announced his long-awaited plan to address the student loan crisis — extending the current repayment pause for all through the end of the year, forgiving $10,000 in loans for those who make less than $125,000 a year and $20,000 for those in that group who received Pell Grants, and limiting loan repayment for those who have undergraduate loans in repayment to 5% of their income.
This is a good step that will be life-changing for millions of people.
Yes, there is more that needs be done. And, in the other direction, there are also the expected questions about whether the plan will be challenged in court. But, before we get to all of that in the days and weeks ahead, I want to take a minute and reiterate a point that I made on Twitter overnight because I think it’s important.
There has been some good-faith debate on the merits of the plan, but too many people’s responses to the announcement really, fundamentally bummed me out.
I tried to see it as “just politics,” even getting ready to respond in kind by dunking on them for easy retweets on Twitter, but, ultimately, the tweets that were upsetting me most didn’t even seem political, though I guess they were in part. They just seemed to be uncaring and/or mean.
What made the disappointment worse was that so many of the people tweeting the most trite dismissals of this plan live such incredibly privileged lives. They have benefited from so many opportunities — whether by virtue of their birth or otherwise throughout their life. It just lays bare how much, at the end of the day, so many people really love — and will fight for — the ways that our systems keep them in their place and keep others worse off.
I don’t want to end on a down note, though, because this really is an important moment and I don’t want to let those who are fighting this change overshadow the change — or those who are going to benefit.
So, I’ll turn it over to Anne Helen Petersen, who has been writing about this — and has also collected stories of what people are saying this will mean for them and their families.
Here’s one of those stories, a brief one, to get you to click:
Paying a mortgage doesn’t seem so far away now. I can actually imagine owning a home!
Seriously, go read it.
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