The Emergency Medical Transport and Active Labor Act (EMTALA) and Idaho’s Total Abortion Ban: February 2024 Update

Feb 28, 2024 | Health Care, Smith + Malek

Updated February, 2024.

In August 2022, the Justice Department filed a lawsuit to protect the rights of patients to access emergency medical care guaranteed by federal law, as mandated by the Emergency Medical Transport and Active Labor Act (EMTALA), including performing abortions for emergency medical conditions such as bleeding, preeclampsia, and pregnancy-related infections. 

The suit challenged Idaho Code § 18-622, known familiarly as Idaho’s total abortion ban, and sought declaratory judgment that it conflicts with, and is preempted by, EMTALA in situations where an abortion is necessary stabilizing treatment for an emergency medical condition. Idaho Code § 18-622(2) states that those who assist in an illegal abortion shall be subject to suspension or revocation of his/her professional license.

The United States also sought an order permanently enjoining the Idaho law to the extent it conflicts with EMTALA. 

Here is a complicated case where the medical community and legal community meet. As of this writing, the Supreme Court has reinstated enforcement of Idaho’s total abortion ban. This prohibits abortions in all stages of pregnancy in Idaho with very few exceptions. 

Below is a comprehensive overview of how this complex case has progressed since its inception.

Standard of Care

On August 24, 2022, a federal court blocked the State of Idaho from enforcing Idaho Code § 18-622, “to the extent that statute conflicts with EMTALA-mandated care.” 

Idaho appealed this ruling to the Ninth Circuit. On September 28, 2023, the Ninth Circuit overturned the District Court’s injunction.

The Ninth Circuit found that § 18-622 does not conflict with EMTALA because EMTALA does not impose any standards of care on the practice of medicine. In making this point, the Court provided an example of a doctor believing an organ transplant is necessary to stabilize a patient’s emergency medical condition, however, EMTALA would not then preempt a state’s requirements governing organ transplants. In the Court’s opinion, this example illustrates that EMTALA is not meant to impose specific standards of care, rather it is to ensure that hospitals do not refuse essential care due to a person’s inability to pay.

Close Examination of the Exception

Next, the Ninth Circuit relied on § 18-622’s exception, “necessary to prevent the death of the pregnant woman,” as yet another reason that EMTALA does not conflict with Idaho law. The Court relied heavily on the Idaho Supreme Court’s decision that the exception creates a subjective standard requiring a doctor to determine whether it is necessary to terminate the pregnancy. According to the Court, this standard does not consider certainty, probability, or imminency.

This called into question situations that do, indeed, pose a medical emergency to the pregnant person. The Ninth Circuit rationalized that the Legislature’s amendments during the 2023 Legislative Session eliminated the issues surrounding (1) the exceptions being affirmative defenses and (2) ectopic pregnancies.

Finally, the panel balanced interests and chose to uphold Idaho’s interest in protecting “unborn life” instead of the federal government’s interest under EMTALA.

Enforcement Temporarily Blocked (again) 

Following the Ninth Circuit’s initial decision overturning the district court’s injunction, the Department of Justice (DOJ) immediately filed an emergency appeal and requested the Ninth Circuit  hear the matter “en banc” or by the Ninth Circuit’s entire bench. On October 10, 2023, the Ninth Circuit granted the DOJ’s appeal, reinstating the lower court’s injunction, and scheduled the matter to be heard en banc.  Also, on November 13, 2023, the Ninth Circuit denied the State of Idaho’s motion to stay the District Court’s decision, thereby reinstating the injunction against Idaho’s total abortion ban. The Ninth Circuit set the matter for oral argument to be heard on January 22, 2024.   

Enforcement Reinstated (again)

The State of Idaho appealed to the United States Supreme Court (“Supreme Court”) to lift the injunction, citing irreparable harm and outlining its success on the merits. The State of Idaho also petitioned the Supreme Court for certiorari meaning to review the case, in the alternative.  

On January 5, 2024, the Supreme Court granted the motion and lifted the injunction, thereby reinstating enforcement of Idaho’s total abortion ban. This prohibits abortions in all stages of pregnancy except when it is necessary to prevent the death of the pregnant woman or during the first trimester of a pregnancy resulting from rape or incest. The Supreme Court also accepted the State of Idaho’s petition for certiorari, signaling its intention to consider the case and provide a ruling on the merits.

What to anticipate next

Arguments are scheduled to be presented to the Supreme Court during the April 2024 session. 

Our healthcare team is watching EMTALA closely and can provide updates and insight upon request. If you would like to consult an attorney about how these and future updates may affect you, please contact us.