Fifth Circuit rules EMTALA doesn’t apply to abortions

A typically crappy ruling from our least favorite appeals court.

Federal regulations do not require emergency rooms to perform life-saving abortions if it would run afoul of state law, a federal appeals court ruled Tuesday.

After the overturn of Roe v. Wade in June 2022, the U.S. Department of Health and Human Services sent hospitals guidance, reminding them of their obligation to offer stabilizing care, including medically necessary abortions, under the Emergency Medical Treatment and Labor Act (EMTALA).

“When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” the guidance said.

Texas sued, saying this was tantamount to a “nationwide mandate that every hospital and emergency-room physician perform abortions.” Several anti-abortion medical associations joined the lawsuit as well.

Since summer 2022, all abortions have been banned in Texas, except to save the life of the pregnant patient. But doctors, and their patients with medically complex pregnancies, have struggled with implementing the medical exception, reportedly delaying or denying abortion care rather than risk up to life in prison and the loss of their license.

At a hearing in November, a lawyer for the U.S. Department of Justice said that while Texas law might not prohibit medically necessary abortions, the guidance was intended “to ensure that the care is offered when it is required under the statute.”

“Individuals [are] presenting to emergency rooms, suffering from these emergency medical conditions,” McKaye Neumeister said. “Right now, HHS can’t ensure that the hospitals are following their obligations in offering the care that’s required.”


Tuesday’s ruling, authored by Judge Kurt D. Engelhardt, said the court “decline[d] to expand the scope of EMTALA.”

“We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child,” Englehardt wrote. “EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt Texas law.”

See here for the previous update. It’s hard to look at this, especially in light of the Kate Cox case, and not conclude that the state of Texas is officially unbothered by the prospect of women dying because they can’t get the medical care they would need in an emergency situation. The state of Texas is saying that it will put all the blame for such a death on the doctors involved, and also that it will both prosecute and sue any doctor that does get involved, and that all this should be perfectly clear and doesn’t need any judicial intervention. Hope you can afford to travel out of state if anything goes wrong with your pregnancy, because right now that’s your only hope.

As we know, there was a different ruling in Idaho on this question, and that state has appealed the injunction on their fanatical anti-abortion law to SCOTUS. One way or another, this question will make it up to the high court, hopefully before someone dies in Texas as a result of this ruling. In the meantime, you should read Chris Geidner’s analysis of why this ruling was bad. A brief taste:

While there are many complicated administrative law issues swirling around this case — and its companion case out of Idaho — the main question comes down to whether the HHS guidance is consistent with EMTALA.

“EMTALA does not mandate any specific type of medical treatment, let alone abortion,” Engelhardt wrote, adding that “EMTALA does not impose a national standard of care” and highlighting the fact that “medical treatment is historically subject to police power of the States.”

None of that resolves anything, however, because DOJ isn’t arguing otherwise.

And yet, a key statement in the middle of that section of the opinion summarizes the court’s view: “A medical provider can … comply with both EMTALA and state law by offering stabilizing treatment in accordance with state law.”

In other words, according to the Fifth Circuit, a provider does not have to stabilize the patient if the state outlaws stabilizing the patient.

The court continues from there, but that conclusion drives the remainder of the decision. This is particularly so when combined with its “dual requirement” logic, which the court uses to dismiss any possible argument that abortion care can be seen as required by federal law — and hence in conflict with a state law that restricts such care.

Go read the rest, and also read Mark Joseph Stern’s analysis, in which he points out an inconvenient truth for SCOTUS.

Consider, for a moment, the implications of the 5th Circuit’s decision. The court acknowledged a fact that the anti-abortion movement has strived mightily to conceal: Abortion bans like Texas’ imperil the health of pregnant patients, denying them the medical standards of care that doctors have applied in these tragic scenarios. In their place, doctors must apply a state-mandated fixation on preserving the fetus’s heartbeat for as long as possible—even if the pregnancy is guaranteed to end in miscarriage, even if the fetus is incompatible with life, and even if the patient is at risk of organ damage or other serious bodily impairment. Kate Cox learned this lesson the hard way when state officials, backed by the Texas Supreme Court, blocked her access to a desperately needed abortion. So did Amanda Zurawski, who nearly died after Texas denied her emergency abortion care—despite premature dilation, prolapsed membranes, and rapidly advancing sepsis—and now faces infertility due to delayed treatment. So have countless other patients denied access to emergency abortions by red-state bans.

These states consistently attempt to blame patients, doctors, and even the media for these horrific, agonizing episodes. But as the 5th Circuit confirmed, the blame falls on the laws themselves. The Biden administration tried to carve out a humane exception for “stabilizing” care when a patient’s health “could reasonably be expected” to suffer severely. Republican lawmakers vehemently rejected this trade-off, doubling down on an exception so narrow and ambiguous that, in practice, a doctor cannot act until their patient reaches death’s door.

I’m sure they can’t wait to address that error. Axios, Reuters, and the Associated Press have more.

UPDATE: Some more reading if you’d like as Steve Vladeck weighs in.

Given the radically different readings of EMTALA reflected in the Idaho and Texas cases, it seems obvious that the Supreme Court will eventually have to weigh in on the subject—and will therefore have a second major abortion-related dispute to resolve this year, in addition to the mifepristone case in which it has already granted certiorari. And its answer to the question about what EMTALA does and does not require will, quite obviously, have significant ramifications in those states with strict anti-abortion laws. After all, imagine a state abortion ban with no medical exception. Under the Fifth Circuit’s analysis, EMTALA arguably still would not require (or even allow) a doctor to perform an abortion that is necessary to save the life of the pregnant woman. Maybe there’d be an argument that the pregnant woman in that scenario would have a constitutional right to life-saving medical care, but even having to litigate that question would be a legal, ethical, and moral nightmare.

But it seems worth emphasizing just how significant the Fifth Circuit’s interpretation of EMTALA is, and could be, beyond the context of abortion. Taken to its limit, the Fifth Circuit’s ruling would provide carte blanche for states to adopt an array of limits on medical treatment under the guise of prohibiting particular standards of care. Imagine, for instance, a state adopting a law barring the use of any medical procedures developed through research involving stem cells. Or barring treatments for gender dysphoria. Or otherwise barring classes of medical services in ways that are not related to the professional judgment of medical professionals. Under the Fifth Circuit’s remarkably narrow reading of EMTALA, it’s hard to see how an emergency room doctor would be authorized to treat emergent patients covered by any of those restrictions. There may be other legal objections to those statutes; the key for present purposes is that they’d have to be litigated one at a time; EMTALA wouldn’t provide a blanket requirement of stabilizing treatment in any or all of those cases.

Go read the rest.

UPDATE: One more to read, from Vox.

This case never should have been heard by any federal court. That’s because it involves a fake dispute over a nonbinding document produced by the Biden administration.

Federal agencies sometimes issue binding regulations, which have the force of law, often impose new legal restrictions on private parties, and may be challenged in federal court.

The government also sometimes releases a nonbinding document, often referred to as a “guidance,” which explains how the federal government understands a particular law. One important difference between these nonbinding guidances and more formal announcements of new regulations is that a guidance does not impose any new legal obligations on individuals or businesses.

In 2022, the Department of Health and Human Services issued such a document “to restate existing guidance for hospital staff and physicians regarding their obligations under the Emergency Medical Treatment and Labor Act (EMTALA), in light of new state laws prohibiting or restricting access to abortion.” This guidance explained that EMTALA still requires most hospitals to provide patients experiencing a medical emergency with “stabilizing treatment within the capability of the hospital” — including, in appropriate cases, an abortion.

As the Fifth Circuit has acknowledged in the past, “an agency’s actions are not reviewable” by a federal court “when they merely reiterate what has already been established.” Similarly, the Fifth Circuit has also conceded, in cases that don’t involve abortion, that federal courts typically may not hear a lawsuit challenging a federal agency’s action when the agency “merely expresses its view of what the law requires of a party, even if that view is adverse to the party.”

So, when Texas and two anti-abortion groups filed this lawsuit, which challenges HHS’s 2022 guidance, the case should have immediately been tossed out.

Nevertheless, Engelhardt and his fellow Fifth Circuit judges used this fake dispute over a nonbinding document as an excuse not just to hear the Texas case, but to declare that HHS’s reading of EMTALA is wrong and that the statute must be read to exclude abortions. This error alone is sufficient reason for the Supreme Court to step in and toss Engelhardt’s decision in the garbage.

Go read that one too.

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2 Responses to Fifth Circuit rules EMTALA doesn’t apply to abortions

  1. Marc says:

    The analysis of preemption in the decision was horrible. As a lawyer who practices in healthcare space, it boggles my mind that the court came down like this because this is actually a fairly easy question.

    It also boggles my mind that the state is essentially requiring doctors to commit malpractice.

  2. Pingback: SCOTUS to hear Idaho EMTALA appeal | Off the Kuff

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