by Leslie P. Francis
Right at the end of its term, the Supreme Court evaded resolving a conflict between Idaho and the federal government about abortions in emergencies. The immediate conflict in Moyle v. United States is whether federal restrictions on Medicare funds may require hospitals to perform abortions needed to prevent significant deterioration of a woman’s health. Deeper issues about congressional authority under the spending clause lurk beneath the surface, however, and may help explain why the Court took up the case and then decided it had done so prematurely.
Here’s the immediate conflict. Under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), hospitals that accept payments from Medicare for any patients must provide screening examinations and stabilization to patients coming to their emergency departments. Hospitals are only expected to provide care “within the staff and facilities available.” In Idaho, abortions are only permissible if necessary “in good faith medical judgment” to save the woman’s life (or in certain cases of reported rape). Abortions to protect a woman’s health, Idaho says, are not “available” in the state and so EMTALA cannot require them. The federal government disagrees, arguing that stabilization includes medically necessary abortion care.
And here’s the essence of how the case got to the Court. The federal government sought to enjoin enforcement of the Idaho abortion law to the extent that it conflicted with EMTALA. The Idaho federal district court granted and then reaffirmed the preliminary injunction, keeping the Idaho abortion law from going into effect to the extent that it might conflict with EMTALA. After an initial stay by a Ninth Circuit panel, then lifted en banc, Idaho petitioned the Supreme Court for a stay. The Court granted the stay and turned the petition into a petition for certiorari before judgment.
A decision by the Court to hear a case before judgment is unusual, signaling that the case is of great national importance, and the Court concluded five months later that it had acted improvidently. Linda Greenhouse, writing in the New York Times, hypothesizes that Justice Alito had managed to convince at least four other justices of his position opposing abortion, but that several wavered after Justice Barrett’s questioning at oral argument revealed women might suffer kidney failure or lose their fertility if the Idaho law were enforced as the state apparently contended it could be. Greenhouse concludes this case illustrates the Court’s “internal tensions and dysfunction.” But it may portend more about the current Court’s predilection to reign in the federal government, also shown in the decisions overruling Chevron deference and allowing challenges to regulations by plaintiffs injured long after the regulations were finalized.
Idaho’s strict abortion ban is once again on hold to the extent that it conflicts with EMTALA. The issues will be heard on the merits at the Idaho federal district court and then presumably at the Ninth Circuit. However, emergency abortions won’t resume in other states like Arkansas, Mississippi, Oklahoma, and South Dakota, where abortion bans also do not have exceptions for severe threats to the health of the pregnant woman.
Moreover, as the case makes its way back through the federal courts a far-reaching and disturbing question is up in the air. Idaho has argued all along that the federal government’s use of its spending power in EMTALA is limited by Idaho law. In sending the case back to the lower courts, six justices agreed that this question deserved fuller consideration: does the Constitution permit Congress to use its spending power in a way that conflicts with state laws? Here’s Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh: “petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.” And here’s Justice Alito, joined by Justice Thomas and Justice Gorsuch: “none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions”; also, “the Government’s new interpretation of EMTALA is refuted by the statutory text, the context in which the law was enacted, and the rules of interpretation that we apply to Spending Clause legislation.”
Under the Constitution, the US federal government has specified limited powers. One of these is the power to tax and spend. The federal government spends vast amounts on Medicare—$944 billion in 2022, about 12% of the entire federal budget. EMTALA was passed under this power when hospitals were notoriously dumping patients who could not pay, often discriminating against patients who were poor and Black, and Congress stepped in with the power of the Medicare purse.
EMTALA is one of many strings the federal government attaches to the money it pays for health care through Medicare or Medicaid. The Patient Self-Determination Act requires patients be informed about their rights to have advance directives under state law. Another example is the Affordable Care Act § 1557 prohibition on discrimination on the basis of age, sex, race, or disability.
If the Court ultimately accepts Idaho’s constitutional argument, it would severely limit what Congress can do with the spending power. The Court already said that Congress cannot impose coercive conditions on the funding it offers to states when it struck down the Affordable Care Act’s requirement to expand Medicaid. Idaho’s argument would extend this reasoning to mean that Congress cannot impose conditions on spending that violate state law if it would be difficult for entities in the private sector to refuse the funding. Most hospitals do need to accept Medicare payments to stay in business; just over 16% of hospital revenue in Idaho came from Medicare in 2022.
The decision to send the case back means courts might limit Congress’s ability to realize federal public policy goals when states seek the benefits of federal money but do not wish to be bound by federal policy. If so, the Idaho conflict between the federal government and the states will not just be about abortions: it will be of a piece with the other Court decisions this term vastly cutting back on the role of the federal government.
Leslie P. Francis, Ph.D., J.D., is distinguished Alfred C. Emery professor of law, distinguished professor of philosophy, and director of the Center for Law & Biomedical Sciences at the University of Utah.