Supreme Court Abortion Case: Major Impact in Idaho’s EMTALA Ruling

aAnyone who has gone to a hospital emergency room expecting to receive medical care – not knowing where else to go, unsure if a loved one is having a medical emergency and what can be done about it, or unsure if whether she can pay – has relied on a law they could not name: the Emergency Medical Treatment and Labor Act (EMTALA).

Congress passed this law in 1986. It creates a rescue point for anyone with a medical emergency. It is the only law in the country that ensures that no matter who you are or what circumstance you are in, a hospital emergency department will provide you with emergency care.

Since then, EMTALA has protected universal access to care. But this vital law is now under threat as anti-abortion lawmakers in Idaho ask the Supreme Court this week to make exceptions. If the Court allows this, more exceptions can be expected and the protection of universal access to care will be jeopardized.

EMTALA’s backstory is enlightening. Congress created it in response to hospitals “dumping” patients who clearly needed emergency medical care but who were uninsured, often black, or otherwise undesirable to hospital staff. Even non-profit hospitals, which are supposed to serve the community they are in, engaged in this unethical practice. A few states tried to prevent dumping, but Congress became involved when the practice proved so widespread and state policies seemed so inadequate that a national solution was necessary.

EMTALA relies on emergency physicians to determine, according to evidence-based standards, whether a medical emergency exists and how to manage it. The law also protects pregnant people who gave birth, because some hospitals had refused to care for these people, and they and their newborns suffered serious injuries — and some died — as a result.

On April 24, the U.S. Supreme Court will hear a state challenge to EMTALA’s universal access rule. Idaho maintains that its laws criminalizing abortion, with only an exception to save the life of the pregnant person, are not undermined by EMTALA.

This case exists because on June 24, 2022, the Supreme Court overturned Roe v. Wade in its Dobbs v. Jackson Women’s Health Organization decision. The Court wrote seven times that it would “return abortion to the people and their elected representatives,” assuming this would free the judiciary from abortion cases. But the undoing of fifty-year constitutional protections for access to abortion created confusion, chaos, and conflict among states, and between state and federal laws. Dobbs allowed state laws to be activated, criminalizing abortion at the time Roe v. Wade was overturned, and giving states the power to enact new laws restricting access to abortion. This has led to a vastly uneven legal landscape across the states.

In response to widespread legal uncertainty following Dobbs, the Department of Health and Human Services reminded hospitals that under EMTALA they are responsible for treating all medical emergencies. This includes performing an abortion if that is the standard of care for the patient’s condition. Idaho and other abortion-restricting states claim they don’t have to follow EMTALA when it comes to abortion.

As I and others have stated in an amicus brief submitted to the Supreme Court, this is not a difficult case. EMTALA is a bipartisan national law that exists for important reasons. Before 1986, states showed little response when hospitals dumped “unwanted” patients. In the wake of Dobbs, dumping has occurred, albeit for different reasons.

Healthcare providers now fear states’ restrictive laws and whether they could lose their licenses, face criminal charges or face steep fines for providing care that they believe is medically necessary. Doctors hesitate because they don’t know if they can act without losing their license or being charged with a crime, and people who need emergency care suffer.

The media regularly publishes stories about people being rejected while experiencing obvious emergencies related to their pregnancy. Patients like Kate Cox in Texas and others are even suing over such damages. And the dangers extend beyond pregnancy. For example, some people with cancer experience limitations in their care after Dobbs.

Contrary to Idaho’s arguments, the Department of Health and Human Services has not changed EMTALA’s rules – it is the Supreme Court that has changed the landscape of law in the US. It is important to remember that returning “abortion to the people and their elected representatives” does not only apply to states; members of Congress are also representatives of the people. EMTALA protects the people in ways that states do not.

Carve-outs would not stop at abortion care. EMTALA is a unique law that protects the right to emergency care in the US. If the Court allows states like Idaho to undermine the protections it provides, all Americans would be undermined.

Nicole Huberfeld is the Edward R. Utley Professor of Health Law at Boston University School of Law and the School of Public Health. She is co-director of the BU Program on Reproductive Justice, and lead author of the Legal Scholars amicus brief on the Idaho case, Moyle v. US.