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).
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 Ninth Circuit is reconsidering its latest ruling: that Idaho’s total abortion ban does not conflict with EMTALA. Here is an overview of what has happened in this complex case since last summer.
“Specific Standards 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 upheld the District Court’s order, enjoining Idaho Code § 18-622. This allows Idaho’s ban to take effect while the panel more fully considers an appeal by the state.
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.
Idaho Code § 18-622 will remain in effect as the litigation continues. As of October 12, 2023, the Ninth Circuit is reconsidering its finding that Idaho’s total abortion ban does not conflict with EMTALA. If you would like to consult an attorney about how these and future updates may affect you, please contact us.