The Idaho Abortion Case That Wasn't
After an accidental release-and-then-recall yesterday, today the Supreme Court officially issued Moyle v. United States. The district court had held that the federal Emergency Medical Treatment and Labor Act (EMTALA) obligates Medicare-funded hospitals in Idaho to offer abortions when necessary to preserve a pregnant patient's health, notwithstanding an Idaho abortion prohibition that contains a life exception but no health exception. The district court accordingly preliminarily enjoined the enforcement of the Idaho law to the extent it conflicts with EMTALA.
The Supreme Court had stayed the district court injunction--i.e., allowed the Idaho law to go into full effect--and granted review. The Justices heard oral argument in April. Today, the Court dismissed the writ of certiorari as improvidently granted (DIG'd in SCOTUS lingo), a decision that only Justice Barrett attempts to explain in any detail.
After discussing the Court's decision to DIG rather than address the merits, in this essay, I offer some observations about two substantive questions that various of the Justices who concurred or dissented raised: whether the fact that Congress relied on its spending power to enact EMTALA precludes giving it preemptive force with respect to state criminal laws; and whether EMTALA really requires hospitals to provide medically necessary abortions forbidden by state law. Just after the Moyle oral argument, I addressed versions of those questions in essays on this blog (respectively here and here), so regular readers may find what I have to say on those questions familiar.
1) To DIG or not to DIG
In a concurrence joined in full by Justice Sotomayor and in part (but not the part I'm about to discuss) by Justice Jackson, Justice Kagan writes that she joins in the Court's decision to DIG and dissolve the stay it had granted because, in her view, the Court never should have granted review or the stay in the first place. ("Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute.") With due respect, that's not a reason to DIG. If a Justice thinks the Court shouldn't have granted cert, they decide the case anyway. Typically, to DIG, there needs to be something new that comes to light.
Although they disagree about just about everything else, Justice Jackson (writing for herself) and Justice Alito, writing for himself as well as Justice Thomas in full and Justice Gorsuch in part (but not the DIG part) agree that the Court shouldn't DIG. Both Justices Alito and Jackson accuse the majority of DIG'ing as a means of ducking a divisive issue.
Justice Barrett justifies the DIG by arguing that circumstances changed after the Court granted cert and the stay. Whereas once it appeared that there was a substantial clash between EMTALA and Idaho's law, representations made by Idaho and the federal government showed that there are very few and perhaps even no circumstances in which there is a genuine clash.
Other Justices--including Justice Kagan, who, recall, joins in the DIG--don't buy that. Indeed, Justice Kagan points to the fact that during the pendency of the SCOTUS stay, "the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect)." Justice Alito also points to various ways in which there is a genuine conflict between EMTALA and the Idaho law.
Thus, at least five Justices (Thomas, Alito, Sotomayor, Kagan, and Jackson) disagree with Justice Barrett's contention that there is little to no conflict between the Idaho law and EMTALA and that therefore (in Justice Barrett's view), there is no irreparable harm to Idaho from leaving the preliminary injunction in place. Justice Gorsuch also apparently disagrees with the decision to DIG, given that he dissents. In other words, six Justices disagree with the only substantial reason offered by any Justice for DIG'ing rather than deciding the merits. That leaves one to think that perhaps Justices Alito and Jackson are correct--that the real reason (or at least a reason) for the DIG is to duck a contentious question. Given the Court's dismissal on standing grounds in the Court's other abortion case this Term, there is a ring of truth to the ducking charge.
2) Can Congress Preempt State Criminal Laws via the Spending Power?
The theory behind conditional spending is that in exchange for receiving federal money, a recipient agrees to the conditions. EMTALA imposes conditions on recipients of federal Medicare funds, but many of those recipients are not arms of the state. They are private nonprofit or for-profit hospitals. How can a private party's receipt of federal funds require that private actor to violate state law when the state has not agreed to the conditions?
That question, Justice Barrett says, invokes a "difficult and consequential argument . . . about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law." Justice Alito thinks the Spending Clause simply doesn't authorize preemption via third parties in this way. Moreover, he says, even if it did, conditions attached to Spending Clause legislation must be clear, and EMTALA doesn't expressly say anything about abortion.
What to make of all of this? Justice Barrett says that because the limits on preemption by spending were not raised in the stay application or addressed by either the District Court or the Ninth Circuit, the Supreme Court should wait to address it. That's fair enough, but what should it say when it does address the question? And what should the lower courts do with this line of argument?
One answer was given by the government at page 46 in its SCOTUS brief in the case, where it cited five prior Supreme Court precedents that upheld preemption via the spending power. None of those cases involved preemption of a state criminal law, but so what? There's nothing special--so far as federal preemption is concerned--about state criminal law versus any other kind of state law. The Supremacy Clause sweeps them all aside. So there is a good argument based in precedent for allowing preemption via the Spending Clause.
Okay, but given this Court's penchant for overruling precedents, suppose five votes can be found to re-examine the question whether Congress can preempt state law by attaching conditions to funds disbursed to private actors. What then?
That's a genuinely difficult question, but it's not one that this case raises. Congress doesn't need Idaho's acquiescence to preempt its abortion law. When the Court in Dobbs returned abortion regulation to the People's representatives, it allowed Congress as well as the states to regulate abortion. Congress needs an affirmative power to do so, but because the provision of abortion and other medical services is "economic activity" within the meaning of the relevant precedents, the Commerce Clause provides that affirmative power. The SG's brief made this point, albeit too subtly for my taste, by quoting Gonzales v. Oregon for the proposition "'that the Federal Government can set uniform national standards' on matters of 'health and safety,' including 'medical practice.'" The key is that the federal statute at issue in that case (the Controlled Substances Act) was validly enacted pursuant to the Commerce Clause. So was EMTALA.
But wait. EMTALA invokes only the Spending power and not the Commerce Clause power. Can it nonetheless be treated as Commerce Clause legislation? Yes, it can. Quoting a 1948 case, the Court said this in the first Obamacare case, NFIB v. Sebelius (in the portion of the decision upholding the individual mandate as an exercise of the Taxing power): "The 'question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.'" Congress acting via the Commerce Clause could have mandated that all hospitals with emergency rooms offer stabilizing care including abortions where medically appropriate. That it chose to impose the condition only on those hospitals that accept Medicare (which is nearly all hospitals anyway) does not render EMTALA any less valid as an exercise of the Commerce Clause power.
Some day the Court may wish to reconsider the permissibility of preemption via conditional spending directed to third parties, but the Idaho abortion case does not present the issue. On remand, the lower courts should reject arguments based on limits of the Spending power.
3) Does EMTALA Ever Require Abortions?
Justice Alito (joined in this respect by both Justices Thomas and Gorsuch) argues that EMTALA never requires abortions. Part of his reasoning relies on the fact that it doesn't say so clearly, but the need for a clear statement stems from Justice Alito's views about Spending Clause legislation, and as I have just shown, those limits don't apply to laws that are independently within Congress's Commerce power.
Justice Alito also says that because EMTALA provides an obligation to provide emergency care for an "unborn child," it cannot ever require abortions. As Justice Kagan shows, however, he simply mis-parses the statute. The relevant provisions impose obligations in cases in which there is a health threat to the fetus. Nothing about those provisions negates the general obligation to provide care--including in some circumstances, abortion--when there is a health threat to the pregnant patient.
During the oral argument, Justice Alito suggested a different inference from the "unborn child" language. He asked whether that's the sort of rhetoric Congress would have used if it meant to impose an obligation to perform abortions. After all, "unborn child" is a phrase associated with the anti-abortion movement.
However, that fact doesn't change how the statute actually operates. Use of the phrase "unborn child" is some evidence that Congress (or some members of Congress) would have been surprised or unhappy to learn that the enacted statutory text sometimes requires abortions--but that kind of indicator of subjective intentions or expectations not embodied in operative text is supposed to be irrelevant to textualists.
Justice Alito also points out that at the time that EMTALA was enacted and amended, the Hyde Amendment--which forbids the use of federal funds for abortions--contained an exception for a pregnant patient's life but not health. Thus, he says, surely the Congresses that enacted and amended EMTALA would not have wanted or expected it to be applied to require abortions to preserve health when there wasn't a threat to life.
However, that objection succumbs to the same response: perhaps it tells us what the enacting Congress apparently wanted or expected; it doesn't tell us what the words Congress enacted mean. After all, the Congress that enacted Title VII in 1964 almost certainly didn't want or expect it to bar employment discrimination based on sexual orientation or gender identity. Yet that's what the language they enacted does--according to the majority opinion of Justice Gorsuch in Bostock v. Clayton County. And yet Justice Gorsuch joined the portion of Justice Alito's Moyle dissent that invokes the Hyde Amendment in a way that is utterly inconsistent with the supposed commitment to textualism.
It almost makes you think that, just as a majority of the Court might have DIG'd to duck the question, Justices Alito, Thomas, and Gorsuch might have landed where they did because of their views about abortion.