Ninth Circuit abortion care case highlights Trump judicial appointees' power

Even on "liberal" courts. For nearly two weeks recently, a trio of Trump appointees expanded the reach of Idaho's criminal abortion law.

For nearly two weeks earlier this month, three Trump judicial appointees made it so that federal emergency room protections relating to abortion care were effectively irrelevant to the interpretation — and potential enforcement — of Idaho’s near-total criminal abortion ban.

And though a follow-up court order put the federal limits back on the application of Idaho’s ban, the entire situation has led to confused, if not conflicting, messages — which, ultimately, can leave people in Idaho without a clear understanding of their rights.

In the midst of U.S. Supreme Court news and all of the news out of the U.S. Court of Appeals for the Fifth Circuit — and even Texas, specifically — the broader effect of Trump’s federal judicial appointees can sometimes get lost.

The recent ruling in the Idaho case, however, came out of the “liberal” U.S. Court of Appeals for the Ninth Circuit and gives a very clear example of how the more than 200 Trump judicial appointees — including more than 50 appeals court judges — can change the law long before a case gets to the Supreme Court.

The late September ruling — and subsequent fallout — is instructive for understanding the current state of the federal courts.

Federal abortion protections

After the U.S. Supreme Court overturned Roe v. Wade in June 2022, the Biden administration made clear — although it was not a new position — that some abortion-related care was protected nationwide under the Emergency Medical Treatment and Labor Act (EMTALA). The guidance from the Health and Human Services Department about EMTALA obligations provides fairly limited protection, as described at Law Dork last summer:

[H]ospitals subject to EMTALA (basically, all that receive Medicare funds) have certain obligations. They 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.

After the Supreme Court announced Dobbs v. Jackson Women’s Health Organization, Idaho’s abortion trigger ban was set to go into effect. Only containing an exception for the life of the mother and reported rape or incest, the Biden administration sued Idaho, arguing for a limitation on the ban to the extent that it would conflict with EMTALA. A federal judge in Idaho agreed with those arguments, issuing a preliminary injunction in August 2022.

As U.S. District Judge B. Lynn Winmill, a Clinton appointee, wrote:

If Idaho’s criminal abortion statute is allowed to go fully into effect, federal law will be significantly frustrated—as discussed in detail above. 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.

The injunction against EMTALA-conflicting enforcement of Idaho’s abortion ban, known as section 622, remained in effect for more than 13 months. Then, on Sept. 28, a three-judge panel of the Ninth Circuit issued a stay of that injunction pending appeal.

The ruling, for the first time and overnight, allowed additional criminal restrictions to be applied against medical providers in Idaho, as seen in the next day’s headline.

A Trump panel

The three-judge panel considering the request consisted of three Trump appointees: Judges Bridget S. Bade, Kenneth K. Lee, and Lawrence VanDyke.

VanDyke, one of the most combative conservative judges on the Ninth Circuit, authored the order granting the stay pending appeal. Notably, the state did not even ask for the stay pending appeal. It was the legislature, which intervened in the case, that did so.

As to the request, VanDyke wrote:

The Legislature has made a strong showing that EMTALA does not preempt section 622. EMTALA does not require abortions, and even if it did in some circumstances, that requirement would not directly conflict with section 622. The federal government will not be injured by the stay of an order preliminarily enjoining enforcement of a state law that does not conflict with its own. Idaho, on the other hand, will be irreparably injured absent a stay because the preliminary injunction directly harms its sovereignty.

VanDyke wrote that the district court relied upon “a gap” between what is allowed under Idaho law and what is required under EMTALA to reach its conclusion. Because of a legislative amendment to Idaho’s ban this year and an Idaho Supreme Court ruling that clarified the scope of the state’s abortion ban, VanDyke wrote dismissively that “almost all the examples in the district court’s parade-of-horribles are no longer true.”

As such, the panel granted a stay of the injunction on Sept. 28, allowing the Idaho abortion ban to go into effect without the EMTALA-related restrictions.

It is true that the amendment and ruling made clear that ectopic pregnancies are not covered by the ban, for example, and that the test for assessing whether “the abortion was necessary to prevent the death of the pregnant woman” is the “good faith medical judgment” of the doctor. Although this limits some of the reach of Idaho’s ban, the fact remains as to the latter point that the exception is limited to “the death of the pregnant woman” outside of rape, incest, or certain nonviable pregnancies.

Pushing back

DOJ and HHS responded quickly, two days later asking the Ninth Circuit for en banc review of the panel’s decision. (En banc review means, generally, review by the full court of a panel’s decision. In the Ninth Circuit, due to how many judges sit on it (28 currently, with one vacancy), an en banc rehearing generally means a “limited en banc” rehearing of the matter by the chief judge of the circuit and 10 randomly selected judges of the circuit. Although the full court could, technically, sit en banc, it has not ever done so since setting the limited en banc procedure.)

In seeking en banc review, the Biden administration argued, “The published stay order allows Idaho to begin enforcing an abortion ban—which has never previously been in effect in the Medicare-participating hospitals at issue—in circumstances where that law is preempted by a federal statute.” For relief, the federal government argued, that “emergency en banc reconsideration of that published order, including an immediate administrative stay of the order, is necessary to prevent immediate irreparable harm to the public and to the United States.”

That same day, Oct. 30, the Ninth Circuit set a quick timeline for consideration of the United States’s request — but no administrative stay was granted — meaning that Idaho’s law would remain in full effect, regardless of EMTALA, during that time.

Idaho’s legislature opposed the federal government’s request for en banc review, as did the state, with the state calling en banc review of a stay pending appeal “a gross misuse of judicial resources” due to the fact that the federal government could continue forward with the case on appeal and then seek en banc review of the full ruling if it lost the merits appeal of the preliminary injunction.

Idaho, in other words, was asking to be able to enforce a state criminal law that the federal government says is, in part, preempted by federal law throughout that entire time — which could easily last a year or longer.

Rehearing — and confusion

Ultimately, the Ninth Circuit — currently made up of 15 Democratic appointees and 13 Republican appointees — agreed to rehear the matter with a limited en banc court. In doing so, it also vacated the panel’s order — ending the stay of the injunction. In short, Idaho’s law, once again, is limited to the extent it conflicts with EMTALA.

Now, an 11-judge en banc court will rehear the request for a stay of Winmill’s injunction pending appeal. In the meantime, the injunction will remain in place and Idaho’s E.R. doctors will have their federal protections.

But, that’s not the end of this. It is important to realize the potential effects of the panel’s ruling. The panel got headlines and a victory lap from state officials fighting the federal challenge.

And though the en banc decision got coverage as well, the headline shows the result: The whole situation caused confusion.

The article does make clear that “[w]ith the injunction back in place, ER physicians in Idaho are again protected while the case is pending,“ but the headline is ambiguous and the explanation of the effect on the law doesn’t come until the 10th paragraph of the story.

This is not just court rulings and newspaper articles. This is the confusing reality for doctors and would-be patients throughout Idaho — many of whom might not even know that the injunction is back in place.

The 12-day shelf-life of VanDyke’s panel ruling might ultimately be a blip on the radar as cases progress and courts rule, but it also shouldn’t be ignored. On the Ninth Circuit alone, 10 of the 28 current judges are Trump appointees. Seven of the 10 were born in the 1970s — and could be serving for decades to come.¹

If extremist appellate panels find value in taking aggressive action that has immediate, even if short-lived, results, the Sept. 28 ruling could be a sign of things to come.

1. This paragraph was expanded after publication, with the two final sentences added to provide additional context.