Idaho’s EMTALA Challenge Has Got Women Dead to Rights

Update Wednesday, April 24, at 3:40 p.m. PT: Even in the cruel landscape of our post-Dobbs world, the oral arguments in Moyle v. U.S. were jarring.

Several of the conservative justices—in particular, Justice Samuel Alito—made clear that they had no interest in hearing about the ruptured membranes, failing kidneys, and uncontrollable hemorrhages of pregnant women and girls denied essential emergency medical care. Alito’s questioning treated these catastrophic injuries to the bodies of pregnant women as if they were mere distractions from the true subject at hand: “the unborn child,” which he invoked as though the embryo or fetus inside a woman’s body were a free-floating, independent being, invested with all the humanity that the pregnant woman lacks.

Solicitor General Elizabeth Prelogar’s pointed reminder that EMTALA’s primary focus is on the individual in need of emergency care hit its target so squarely that Alito immediately attempted to backtrack, shouting defensively that “no one is suggesting a woman is not an individual and she does not deserve stabilization. Nobody is.”

Of course, this is exactly what the state of Idaho, and Alito himself, is suggesting. The only question is whether the rest of the Court will agree. 

The emergency room of the Harborview Medical Center on March 9, 2022 in Seattle. In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services, regardless of ability to pay. (John Moore / Getty Images)

The state of Idaho claims it has the right to forbid pregnant women and girls—and only pregnant women and girls—from receiving emergency care that could save their lives.

People end up in emergency rooms for a variety of reasons. They’re having trouble breathing. They’ve suddenly developed chest pains. They’re bleeding uncontrollably. They’ve fallen off a roof, they’ve crashed their car, they’ve overdosed, they’re suicidal, they got stabbed in a fight, they got shot by police.

Some people who need emergency services are poor, or have no insurance, or are in the country illegally, or have committed a crime. Under the federal Emergency Medical Treatment and Labor Act (EMTALA), they are all entitled to receive emergency care. This law is based on a simple principle: Hospitals shouldn’t be allowed to let people die based on who they are, how much they can pay, or what they have done.

On April 24, the Supreme Court will hear oral arguments in Moyle v. U.S., a case that will determine whether individual states are allowed to exclude a single group from this basic protection: pregnant women. The state of Idaho claims that it has the right to forbid pregnant women and girls—and only pregnant women and girls—from receiving emergency care that could save their lives.

How, and why, would a state want to do this?

First, the how: In 2022, the Supreme Court ruled in Dobbs that forced childbirth does not violate the Constitution. This allowed Idaho’s 2020 “Defense of Life Act,” a draconian anti-abortion law, to go into effect. According to the law, anyone who performs an abortion faces imprisonment of up to five years in prison. Healthcare professionals who perform abortions will also have their professional licenses suspended or revoked permanently.

This puts the state law directly in conflict with federal emergency care law. EMTALA requires Medicare-funded hospitals (which most hospitals are) to provide medically necessary stabilizing treatment to any patient with an “emergency medical condition.” An emergency medical condition is one that, in the absence of immediate medical attention, is likely to cause “serious impairment to bodily functions,” “serious dysfunction of any bodily organ,” or otherwise puts the health of the patient “in serious jeopardy.”

A more accurate title for Idaho’s abortion law would be the ‘Let Women Die Act.’

Pregnancy complications are a common reason for emergency care visits, and the medically necessary stabilizing treatment necessary to prevent serious injury or death to women and girls experiencing those complications sometimes includes the termination of the pregnancy.

Given that an abortion is sometimes the only medical treatment that will prevent death or serious bodily injury to women, a more accurate title for Idaho’s abortion law would be the “Let Women Die Act.” But as seen in the majority decision in Dobbs and the arguments propounded recently by the Alliance Defending Freedom in the mifepristone access case, forced birth proponents are rarely candid about their necropolitical agenda. Defenders of Idaho’s law instead feign outrage at the suggestion that the law will kill women, pointing to the law’s exception for abortions performed by a physician who “determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”

Idaho insists that the law’s exception for abortions necessary to save the life of the mother means that there is no conflict between it and federal law. But as the Department of Justice pointed out when it sued to stop the Idaho law from being enforced with regard to EMTALA’s requirements, federal law requires emergency medical care necessary to prevent serious injury, not just death. The federal law does not authorize the withholding of essential medical treatment to patients who are only close to, but have not yet arrived, at death’s door.

What is more, as countless medical professionals have attested, the line between serious bodily injury or death is rarely precise. It is often difficult, if not impossible, to predict the exact moment that a serious medical condition becomes a life-threatening one.

As the National Women’s Law Center detailed in its amicus brief in the case, “No clinical bright line defines when a patient’s condition crosses the lines of this continuum. At what point does the condition of a pregnant woman with a uterine hemorrhage deteriorate from health-threatening to the point that an abortion is ‘necessary’ to prevent death? When is it certain she will die but for medical intervention? How many blood units does she have to lose? One? Two? Five? How fast does she have to be bleeding?”

The line between serious bodily injury or death is rarely precise.

The recognition that serious bodily injury and death are so closely related as to be nearly indistinguishable has long been reflected in U.S. law. At common law, a person could be convicted of murder not only if he intended to kill but also if he intended to inflict “grievous bodily injury.” The law of self-defense generally allows a person to use deadly force when facing an imminent threat of death or serious bodily harm, not only to herself but to others.

Significantly, Idaho’s self-defense law specifies that a person is not required to wait for the danger to become fully apparent before acting: “The defense of self or of another does not require a person to wait until he or she ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.”

Unless, of course, the person in danger is a pregnant woman.  

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Dr. Mary Anne Franks is the Eugene L. and Barbara A. Bernard professor in intellectual property, technology and civil rights law at George Washington Law School and the president and legislative and tech policy director of the nonprofit organization Cyber Civil Rights Initiative. Her areas of expertise include First and Second Amendment law, criminal law, family law, and the intersection of civil rights and technology. She is the author of the award-winning book, The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech (Stanford Press, 2019). Her second book, Fearless Speech (Bold Type Books) is expected in 2024.