EMTALA Emergency Abortion Care Litigation: Overview and Initial Observations (Part II of II)

EMTALA Emergency Abortion Care Litigation: Overview and Initial Observations (Part II of II)

Legal Sidebari

EMTALA Emergency Abortion Care
Litigation: Overview and Initial Observations
(Part II of II)
November 1, 2022
As discussed in Part I of this Legal Sidebar series, after the Supreme Court decided Dobbs v. Jackson
Women’s Health Organization and state abortion restrictions began going into effect in some states, the
Department of Health and Human Services (HHS) issued a July 2022 guidance document (HHS
Guidance) regarding the enforcement of the Emergency Medical Treatment and Active Labor Act
(EMTALA). The HHS Guidance reiterates hospitals’ and their physicians’ obligations under EMTALA to
provide stabilizing care—including abortion in medically appropriate circumstances—when a patient
presenting at an emergency department is experiencing an emergency medical condition. After HHS
issued the Guidance, the State of Texas, in Texas v. Becerra, sued to block enforcement of the Guidance
while HHS, in United States v. Idaho, sued the State of Idaho to block enforcement of Idaho’s abortion
ban to the extent it conflicts with EMTALA. At the preliminary injunction stage, the district courts
reached conflicting conclusions as to the validity of the Guidance and whether EMTALA preempted the
state abortion restriction at issue. The Texas court enjoined the Guidance in Texas while the Idaho court
enjoined part of Idaho’s abortion restriction. This part of the Legal Sidebar provides an overview of the
district court orders and some initial observations regarding those decisions and the parties’ litigating
positions.
District Court’s Decision in Texas v. Becerra
The State of Texas and two plaintiffs representing physician organizations opposed to elective abortions
sued to challenge the 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 an August 2022 order, the U.S. District Court for the Northern District of Texas
agreed and granted the plaintiffs’ motion for preliminary injunction, temporarily enjoining the HHS
Guidance in Texas.
As a threshold matter, the court concluded that the plaintiffs had standing to sue and that the HHS
Guidance is a final agency action subject to judicial review. As to standing, which requires plaintiffs to
Congressional Research Service
https://crsreports.congress.gov
LSB10851
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

Congressional Research Service
2
establish they have suffered an injury in fact, the court found that “the Guidance’s reading of EMTALA
theoretically allows for abortions in cases prohibited by Texas law.” The court noted, for example, that the
HHS Guidance states that abortion may be required for emergency medical conditions that are likely to
become emergent, while Texas law requires the life-threatening physical condition to already be present.
The differences between the HHS Guidance and Texas law, in the court’s view, are material and
sufficiently establish an actual injury both to Texas’s sovereign interests to enforce its own laws and to the
organizational plaintiffs’ members who face potential enforcement actions by HHS. The court further
concluded the HHS Guidance is a reviewable final agency action, rejecting HHS’s argument that it
“simply restates the preexisting and long-understood requirements” of EMTALA.
On the merits, the court held that plaintiffs are likely to succeed on their claim that the HHS Guidance
exceeds HHS’s statutory authority. In the court’s view, EMTALA does not directly address whether a
physician must perform an abortion when he or she believes it would resolve a pregnant woman’s
emergency medical condition. The court observed that instead, EMTALA’s definition of “emergency
medical condition”—which references, for a pregnant woman, a condition that threatens her health or the
health of the “unborn child”—creates an obligation to stabilize both the pregnant woman and her unborn
child. In the court’s view, EMTALA therefore leaves unresolved what to do when an emergency medical
condition threatens the health of both the pregnant woman and the unborn child, such that there is no
direct conflict between EMTALA and state laws that attempt to address such circumstances. Under
EMTALA’s preemption provision, the court reasoned, such a nonconflicting state law is preserved. By
requiring a physician to provide abortion as a stabilizing treatment where the gap-filling state law
prohibits such a treatment, the court continued, the Guidance exceeds EMTALA.
In so concluding, the court rejected HHS’s argument that EMTALA’s reference to the health of an
“unborn child” is merely meant to ensure that a hospital’s EMTALA obligations extend to a scenario
“where the unborn child’s health (and not the pregnant patient’s health) is threatened.” In the agency’s
view, Congress did not intend this reference to limit EMTALA-mandated care to pregnant patients when
they themselves experience an emergency medical condition, particularly if the condition also falls within
one of the other two disjunctive criteria for establishing an emergency medical condition.
The court also concluded that plaintiffs are likely to succeed on their claim that HHS improperly issued
the HHS Guidance, finding that the Guidance was a policy statement that establishes or changes a
substantive legal standard and is subject to the notice-and-comment requirements of the Administrative
Procedure Act. Based on these conclusions, the court temporarily enjoined HHS from enforcing the
Guidance within Texas. As litigation continues, the United States has asked the district court to clarify the
injunction’s scope, specifically whether it would prohibit HHS from enforcing EMTALA even where the
federal obligation to provide stabilizing treatment dovetails with the state law’s exception to the abortion
ban. The United States has also appealed the district court’s order to the U.S. Court of Appeals for the
Fifth Circuit.
District Court’s Decision in United States v. Idaho
In August 2022, the United States sued the State of Idaho, asserting that aspects of the state’s abortion ban
conflict with EMTALA, and seeking to enjoin the state from enforcing the ban to the extent it conflicts
with EMTALA-mandated care. Later that month, the U.S. District Court for the District of Idaho granted
the United States’ motion for preliminary injunction.
The court concluded, as a threshold matter, that the United States has a cause of action against the state
based on the court’s inherent equitable power to enjoin a state law that conflicts with a federal statute.
The court also concluded that the United States demonstrated sufficient injury in fact to establish
standing, including based on the harm to its sovereign interests when its laws are violated.

Congressional Research Service
3
On the merits, the court concluded that the United States is likely to succeed on its claim that aspects of
the Idaho law conflict with EMTALA and are preempted. “[T]he plain language of the statutes,”
according to the court, demonstrates that EMTALA requires abortions in certain circumstances not
covered by the state law’s affirmative defense, making it impossible for physicians to comply with both
laws simultaneously in those situations. In particular, the court concluded that EMTALA directs
physicians to provide stabilizing treatment—including abortion—“if they reasonably expect the patient’s
condition will result in serious impairment to bodily functions, serious dysfunction of any bodily organ or
part, or serious jeopardy to the patient’s health.” In contrast, the state law’s affirmative defense, the court
continued, more narrowly allows the performance of abortion when “the treating physician determines
[the procedure] [is] necessary to prevent the patient’s death.” Under the state law, the court reasoned, it is
not enough for a condition to be life-threatening, “which suggests only the possibility of death”; instead,
“the patient’s death must be imminent or certain absent an abortion.”
The court further concluded that the Idaho law “stands as a clear obstacle” to Congress’s intent to ensure
adequate emergency care through EMTALA by deterring physicians from providing abortions as
stabilizing treatment in some emergency situations. The inherent deterrent effect of a criminal statute is
compounded here, according to the court, by both the abortion ban’s structure, which provides for an
affirmative defense that can only be asserted upon prosecution, rather than an exception, as well as the
uncertain scope of the affirmative defense. In the court’s view, the determination that a physician must
make to invoke the defense—whether abortion is necessary to prevent death—is often a “medically
impossible determination” given that “medical risks exist along a continuum” with a range of possible or
probable outcomes. The uncertainty as to the defense’s availability, according to the court, would deter
even those providers who are willing to risk prosecution from providing emergency abortion care,
resulting in delayed care that frustrates EMTALA’s purpose to provide adequate emergency care.
After determining that the United States also met the remaining preliminary injunction factors, the court
enjoined the state from enforcing the abortion ban to the extent it conflicts with EMTALA. As litigation
continues in the district court, the Idaho legislature, which intervened in the case to participate in the
preliminary injunction motion, asked the court to reconsider its order.
Initial Observations
In holding that the Constitution does not confer a right to abortion, and “return[ing] the issue of abortion
to the people’s elected representatives,” one of the open questions after Dobbs is how state abortion
restrictions will interact with existing federal law. The litigation over EMTALA’s preemptive scope is one
example of such an interaction. The ongoing litigation in Texas and Idaho highlights several issues related
to this preemption analysis.
Preemption as a context-specific analysis. The contrasting preliminary injunction orders in Texas and
Idaho—in which one court enjoined the HHS Guidance in Texas while another court enjoined Idaho’s
state ban in part—as well as the parties’ continuing dispute over the scope of the injunctions in each case,
highlight the context-specific nature of the preemption analysis. At bottom, preemption involves taking a
comparative look at the relative obligations or prohibitions imposed by the applicable federal and state
laws to discern the existence of any conflict. Here, the extent to which EMTALA preempts state abortion
bans depends in significant part on how courts interpret the scope of EMTALA’s requirements and the
scope of the relevant state restrictions—more specifically, whether the exceptions to state restrictions
permit physicians to perform emergency abortion procedures in circumstances required by EMTALA. If
not, a state abortion restriction may be in direct conflict with EMTALA.
The uncertain scope of the life-saving exceptions to state abortion restrictions. Because the scope of
exceptions to state abortion restrictions is central to the EMTALA preemption analysis, both Texas and
Idaho required the states in each case to articulate their view of the parameters of their respective life-

Congressional Research Service
4
saving exceptions. The states’ litigation positions potentially highlight an issue flagged by some
commentators even before the issuance of Dobbs—i.e., uncertainties concerning the scope of such
exceptions, which all existing state abortion restrictions have in varying formulations.
In Idaho, where the affirmative defense allows for abortions “necessary to prevent the death of the
pregnant woman,” the court noted several physician declarations highlighting real-life cases of emergency
pregnancy complications that required abortion as treatment—involving, for example, preeclampsia and
infection with the possibility of developing sepsis. According to the physicians, it would have been
unclear to them whether those circumstances would meet the law’s affirmative defense standard. In its
response, Idaho seemingly agreed that these circumstances fall within the affirmative defense—such that
there is no conflict between EMTALA and state law—because the physicians determined in their good
faith medical judgment “that the patient’s life was in danger”—a standard arguably less stringent than the
“necessary to prevent death” statutory standard.
In Texas, HHS defended its Guidance in part by arguing that Texas had not identified any “particular
medical circumstance that falls into any gap between Texas law and EMTALA”—for example, a
circumstance in which EMTALA would require abortion to avoid “serious impairment to bodily
functions” but state law would prohibit the treatment because it falls outside the exclusion for when there
is a “serious risk of substantial impairment of a major bodily function.” In response, Texas pointed to the
HHS Guidance’s reference to “incomplete medical abortion.” The district court accepted that as an
example of a circumstance where the HHS Guidance “permits a physician to immediately complete a
medical abortion—regardless of whether the unborn child is still alive and before it presents a threat to
the life of the mother” in contravention of state law. Whether this is a fair reading of the HHS Guidance,
however, is unclear because the Guidance does not appear to treat incomplete medical abortion differently
from other pregnancy complications implicating EMTALA. As a result, some could argue the Guidance
would not appear to require abortion as stabilizing care absent emergent circumstances such as severe
bleeding.
Both Idaho’s defensive litigation position—which appears to advance a less stringent reading of the
state’s life-saving exception that is more on par with EMTALA’s standard—and the lack of concrete
medical circumstances identified by Texas that would highlight a conflict between its law and EMTALA,
tend to suggest a small gap, if any, between EMTALA and relevant state laws. In other words, these cases
may suggest that, as a practical matter, in most circumstances in which EMTALA requires hospitals and
their physicians to provide abortion as stabilizing treatment, such circumstances fall within the states’ life-
saving exceptions to their abortion restrictions.
Emergency abortion care and the “major questions” doctrine. The district court orders in Texas and
Idaho—despite reaching conflicting results—are notable for one similarity. Neither court refers to the
“major questions” doctrine, which both Texas and the Idaho legislature sought to invoke. As discussed in
more detail in this Sidebar, the Supreme Court last term formally applied the “major questions doctrine”
in rejecting the Environmental Protection Agency’s reliance on its statutory authority authorizing it to
lower emissions through the application of the “best system of emission reduction” to lower greenhouse
gas emissions. The Court rejected this claimed authority in part because it concerned an approach—
encompassing an emission trading system—involving a “major question” of “vast economic and political
significance” that Congress had not clearly authorized the agency to implement.
Both Texas and the Idaho legislature argued that EMTALA could not preempt the respective state
abortion restrictions because “[w]hether and when to permit abortions is an issue of vast policy and
political significance” that EMTALA does not clearly address. Neither court, however, relied on this
doctrine in interpreting EMTALA. The courts’ silence could speak to one difference between a statute that
grants an agency an open-ended authority to apply the “best system of emission reduction” versus
EMTALA, which tethers its requirements to the reasonable medical judgment of physicians and the
relevant standards of practice, an objective standard that likely cabins the scope of any agency discretion.

Congressional Research Service
5
Author Information

Wen W. Shen

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10851 · VERSION 1 · NEW