Idaho appeals EMTALA injunction to SCOTUS

Brace yourselves.

Idaho asked the Supreme Court Monday to stay a lower court injunction, or to take up its case directly, as it attempts to fend off the Biden administration’s challenge of the state’s abortion ban.

The government filed suit in August 2022, arguing that Idaho’s abortion ban — which includes penalties for providers who perform abortions — runs afoul of Emergency Medical Treatment and Labor Act (EMTALA).

Health and Human Services Secretary Xavier Becerra published a memo shortly after the Dobbs decision reminding hospitals that EMTALA requires them to perform abortions as part of emergency stabilizing care. Idaho’s ban prohibits abortions except when necessary to prevent the pregnant woman’s death.

The government has argued that the gap between those two requirements is large, and that EMTALA preempts the abortion ban in those cases. That argument won at the district court level, and a judge enjoined Idaho’s ban where it conflicts with EMTALA. A Ninth Circuit Court of Appeals panel, composed of three Donald Trump appointees, lifted the injunction in September. The government immediately moved for emergency reconsideration by the Ninth Circuit en banc, which vacated the panel order and denied Idaho’s request to impose its ban in those emergency situations during the appeals process.

Now, Idaho is going to the Supreme Court for permission to fully enforce its ban.

In its new filing, the state rails against the Ninth Circuit’s “unreasoned order,” its “pulling the case away from a panel that had thoroughly considered the merits of Idaho’s stay application” and the federal government’s “unauthorized power grab.”

Lawyers for the state made many similar arguments to those representing Texas in a parallel case which is currently awaiting a ruling from a 5th Circuit panel that made little effort to mask its hostility to abortion in oral arguments earlier this month. Both states’ legal teams made much of EMTALA’s “silence” on abortion and the federal government’s supposed trampling of state rights.

“The district court’s injunction effectively turns EMTALA’s protection for the uninsured into a federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life and turns emergency rooms into a federal enclave where state standards of care do not apply,” Idaho’s lawyers fumed.

See here for some background on the Idaho case, and here for the latest on the Texas case. If the Fifth Circuit does what it usually does, then there will be a circuit split and SCOTUS will have to take this up. If not, or if they just take their sweet time, SCOTUS can punt, at least for now. The prospect of another high-profile abortion case on SCOTUS’ docket, in a Presidential year, when the zealots’ argument is basically “we should be allowed to let women get as close to death as possible before we’ll grudgingly let a doctor perform an abortion on her to save her miserable life”, would sure make things spicy. We’ll see what SCOTUS does.

Oh, and just to make things more exciting, today is the day that the Texas Supreme Court has its hearing in the lawsuit to allow exemptions to Texas’ super strict anti-abortion law. As you know, a Travis County judge granted an order allowing some exemptions in an effort to clarify what the law does allow. That ruling was put on hold after it was appealed to SCOTx, and today the hearing will determine whether that injunction will remain in place during the litigation process. Another huge deal, and we’ll know more about what the landscape looks like going forward. I will of course keep an eye on it.

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