Why Moyle was no victory for abortion rights

The Supreme Court's decision in Moyle v. United States appears at first glance to hand pro-choice healthcare providers and advocates a rare victory. (603 U.S. _____ (2024).) A closer look, however, reveals the Court only delayed, or just avoided, ruling on the most critical question presented in that case: Can states prevent doctors from providing an abortion where a medical emergency exists, where an abortion is the stabilizing treatment necessary to resolve the emergency condition? The answer for patients in Idaho is, at least for now, no. But in the sixteen states where abortion remains largely illegal, the answer remains unclear.

That ambiguity was exacerbated by the four conflicting opinions the Supreme Court issued just to decide that its earlier grant of certiorari was "improvidently granted." Three justices would uphold the injunction that prevented Idaho from criminalizing abortion services provided as necessary stabilizing treatment, and three would not. The remaining three simply punted on any decision, creating uncertainty over the ultimate outcome. As Justice Jackson noted, healthcare providers are "all but paralyzed by legal uncertainty." Faced with the consequence that a wrong decision may land them in jail, doctors may opt not to provide a medically necessary abortion. Patients will needlessly suffer.

Moyle centered on a conflict between an Idaho state law called the Defense of Life Act ("DOLA"), and a federal law known as EMTALA. (Emergency Medical Treatment and Labor Act. 42 U.S.C. § 1395dd.) As originally enacted, Idaho's DOLA criminalized nearly all performed or attempted abortions, punishable by imprisonment of two to five years. (Idaho Code § 18-622 was subsequently amended in 2023 by H.B. 374 to revise the definition of abortion and clarify which actions and attempts constitute criminal abortions.) Although it has since been amended, at the time litigation started, DOLA provided one limited exception where a physician determines in their "good faith medical judgment" that the abortion was necessary to prevent the death of the pregnant woman.

EMTALA requires hospitals that participate in Medicare and operate emergency departments (meaning, nearly all hospitals in the country) to provide treatment, including abortion in medically appropriate circumstances, necessary to stabilize patients presenting with emergency conditions regardless of their ability to pay. (42 U.S.C. § 1395dd. See too https://www.cms.gov/files/document/qso-22-22-hospitals.pdf (last accessed June 28, 2024). This HHS guidance does not apply to abortion laws in Texas (Texas v. Becerra, 89 F.4th 529, 541 (2024).) EMTALA violations are serious, including termination from Medicare and state health care programs and significant monetary penalties for both hospitals and physicians. (42 USC § 1395dd(d)(1); 42 CFR sec. 1003.500. ) Like other federal statutes, EMTALA expressly preempts state law "to the extent that the [state law] requirement directly conflicts with a requirement of this section." (42 U.S.C. § 1395dd(f).) Thus, a state law cannot prohibit a physician from providing emergency care that EMTALA otherwise would permit. Nor can a state frustrate Congress's intent to ensure adequate emergency care for all patients who show up in Medicare-funded hospital emergency departments.

To understand why the Supreme Court needs to resolve the conflict between laws like DOLA and EMTALA, one must consider where and how the tension between these laws presents. To start, the conflict would only arise in an emergency room, where pregnant patients commonly present experiencing a variety of severe complications. These include premature rupture of the membranes, pre-eclampsia, placental abruption, severe heart failure, and sepsis. As the District Court noted, in these situations, physicians are required to make "complex, difficult decisions in [a] fast-moving, chaotic environment." (United States v. Idaho, 623 F. Supp. 3d 1096, 1101 (D. Idaho 2022).)

If the treating doctor believes that an abortion is necessary to stabilize the patient's condition, that physician is required under EMTALA to provide an abortion. (42 U.S.C. § 1395dd.) If they do, they are committing a crime under state law unless the physician can demonstrate that, in their good faith medical judgment, an abortion was necessary to prevent the death of the pregnant patient (not just necessary to prevent serious harm). (Idaho Code § 18-622(2)(a)(i).) Alternatively, the physician can airlift the patient to another state or provide alternative, suboptimal treatment other than abortion. As the District Court noted, that can lead to serious negative outcomes such as infertility, sepsis, limb amputation, uncontrollable hemorrhaging, brain injury, or death. (623 F.Supp.3d at 1101.)

Because of the conflict between EMTALA and laws like DOLA, providers in states with abortion bans have only seconds to ask themselves, in a chaotic and fast-moving environment, which of these evils they can live with.

Even before Dobbs, the field of obstetrics faced enormous challenges - including increased maternal deaths, particularly among people of color. (https://www.aamc.org/news/fallout-dobbs-field-ob-gyn (last accessed June 28, 2024).) In light of the impossible conundrum conflicts between DOLA-type laws and EMTALA create, OB/GYNs are now fleeing states with abortion bans, exacerbating what were already "OB/GYN deserts" in large portions of the country. (https://www.marchofdimes.org/maternity-care-deserts-report (last accessed June 28, 2024).) Fewer OB/GYNs in these states will only intensify the worsening maternity care in this country.

This is precisely why we need laws like EMTALA, which was enacted to prevent hospitals from "dumping" patients based on their inability to pay - a practice that was becoming all too common during the 1980's and disproportionately led to maternal complications or death among people of color. This is also why Moyle is no victory. The Supreme Court needed to address the merits and resolve the conflict in favor of EMTALA. So long as there is an unresolved conflict with state abortion bans, OB/GYNs will leave states like Idaho - ultimately making the need to resolve the issue largely moot, because there will not be enough OB/GYNs left in those states to treat pregnant patients in emergency rooms.