The head of Idaho’s House of Representatives is urging the Supreme Court to reject the Biden administration’s claim that a federal law supersedes the state’s comprehensive abortion law and creates a narrowly defined right to abortion.
Critics say that the federal government’s interpretation of the federal Emergency Medical Treatment and Labor Act (EMTALA), effectively creates a new federal right to abortion in hospital emergency rooms. The Biden administration argues that Idaho’s abortion law, the Defense of Life Act, is preempted by EMTALA, which requires hospitals that receive Medicare funding to provide stabilizing treatment for emergency patients, and that treatment includes abortions. Federal preemption means that a state law that conflicts with federal law is invalid.
EMTALA was passed by Congress in 1986 “to ensure public access to emergency services regardless of ability to pay,” according to a Centers for Medicare and Medicaid Services (CMS) summary.
The Social Security Act requires hospitals that participate in Medicare and provide emergency services “to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual’s ability to pay.”
The federal government incorrectly “recasts EMTALA to empower the Executive Branch to set a nationwide standard of emergency care,” Mr. Moyle states in the brief.
The government would deliver to the U.S. Department of Health and Human Services “a line-item veto over state healthcare laws,” he adds.
The government “ignores what the Idaho Supreme Court has said about Idaho law and what Congress has said about federal abortion laws. There is nothing ‘narrow’ about that preemption theory.”
“Congress did not, ‘through muffled hints,’ ‘effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice’ in most emergency rooms nationwide,” he wrote, citing the 2006 Supreme Court precedent of Gonzales v. Oregon.
“That unprecedented power is irreconcilable with the major questions doctrine, the Spending Clause, and the Tenth Amendment’s promise of dual sovereignty,” the brief states.
The government’s administrative power took a hit in 2022 when the Supreme Court formally recognized the “major questions doctrine,” which the Yale Law Journal states “instructs courts to presume that Congress does not delegate policy decisions of great economic and political magnitude to agencies.”
The case goes back to 2020 when Idaho enacted the Defense of Life Act with a built-in triggering provision, allowing it to take effect if Roe v. Wade (1973) were ever overturned. The law took effect in 2022 after the Supreme Court reversed Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, returning the regulation of abortion to the states.
The Defense of Life Act forbids abortions except when “necessary to prevent the death of the pregnant woman” or during the first trimester when the pregnancy was caused through rape or incest.
The federal government asked for a preliminary injunction to stop the state law from taking effect following the Dobbs ruling. The federal district court granted the preliminary injunction in August 2022, finding the state statute was preempted by EMTALA.
Idaho and the state Legislature appealed. In September 2023, the U.S. Court of Appeals for the Ninth Circuit granted the Legislature’s motion to stay the court order pending appeal.
On Jan. 5, the Supreme Court granted Idaho’s request to stay the lower court order, pending the outcome of the case at the high court. The Supreme Court ruled that the stay request should be treated as a petition for certiorari, or review, before judgment, and that the case should be heard on April 24.
The Supreme Court appeared skeptical of a challenge brought by a doctors’ group against the Food and Drug Administration’s loosening of regulations pertaining to the abortion pill mifepristone.
In oral arguments, several justices seemed to question whether the doctors’ group had a right to bring the challenge, known in legal parlance as standing, a key argument in the government’s case.
Medication abortions are reportedly lawful in 36 states and the District of Columbia.
A medication abortion generally involves the use of mifepristone, which blocks progesterone, a hormone, and misoprostol, which induces contractions. Misoprostol, which is widely available because it has many medical uses, isn’t an issue in the current litigation. Also known as mifeprex and RU-486, the drug is made by Danco Laboratories.
Advocates for mifepristone say the current system by which the drug is provided is safe, while opponents say it puts women at risk by ignoring safety measures that used to be in place.
The Biden administration and pro-abortion groups worry that the Supreme Court’s eventual decision in the case could affect the drug’s availability.
The court could rule on the case at any time.
