SUPREME COURT OF THE UNITED STATES
_________________
Nos. 23–726 and 23–727
_________________
Mike Moyle, Speaker of the Idaho House
of Representatives, et al., PETITIONERS
23–726
v.
United States
Idaho, PETITIONER
23–727
v.
UNITED STATES
on writs of certiorari to the united states
court of appeals for the ninth circuit
[June 26, 2024]
Justice Alito, with whom Justice Thomas joins,
and with whom Justice Gorsuch joins as to Parts I and II,
dissenting.
This case presents an important and unsettled
question of federal statutory law: whether the Emergency Medical
Treatment and Labor Act (EMTALA), 42 U. S. C. §1395dd,
sometimes demands that hospitals perform abortions and thereby
preempts Idaho’s recently adopted Defense of Life Act, Idaho Code
Ann. §18–622 (Supp. 2023). Enacted nearly 40 years ago, EMTALA
requires hospitals participating in Medicare to “scree[n]” and
“stabilize” “any individual” who comes to an emergency room with an
“emergency medical condition” that jeopardizes the patient’s
“health.” §§1395dd(a), (b)(1)(A), (e)(1)(A). And if the patient is
a pregnant woman, the hospital must stabilize both “the woman” and
“her unborn child.” §1395dd(e)(1)(A)(i).
After this Court’s decision in
Dobbs v.
Jackson Women’s Health Organization, 597 U.S. 215 (2022),
Idaho and other States enacted new laws restricting the performance
of abortions. To protect both “maternal health and safety” and
“ ‘the life of preborn children,’ ”
Planned Parenthood
Great Northwest v.
State, 171 Idaho 374, 438, 522 P.3d
1132, 1196 (2023) (quoting Idaho Code Ann. §18–601), Idaho’s law
permits an abortion only when “necessary to prevent the death of
the pregnant woman,” §18–622(2)(a)(i).
Shortly before Idaho’s law took effect,
President Biden instructed members of his administration to find
ways to limit
Dobbs’s reach. Protecting Access to
Reproductive Healthcare Services, Exec. Order No. 14076, 87 Fed.
Reg. 42053 (2022). In response, Government lawyers hit upon the
novel argument that, under EMTALA, all Medicare-funded
hospitals—that is, the vast majority of hospitals[
1]—
must perform abortions on request
when the “health” of a pregnant woman is in serious jeopardy.
§1395dd(e)(1)(A)(i). In the Government’s view, EMTALA trumps laws
like Idaho’s, which allow abortions only to preserve the life of
the pregnant woman. See Dept. of Health & Human Servs. (HHS),
Reinforcement of EMTALA Obligations Specific to Patients Who Are
Pregnant or Are Experiencing Pregnancy Loss 1 (QSO–22–22–Hospitals,
July 11, 2022). The Government sued Idaho on this preemption theory
and obtained a preliminary injunction against enforcement of the
state law “to the extent it conflicts with EMTALA.” 623
F. Supp. 3d 1097, 1117 (Idaho 2022).
The Government’s preemption theory is plainly
unsound. Far from requiring hospitals to perform abortions,
EMTALA’s text unambiguously demands that Medicare-funded hospitals
protect the health of both a pregnant woman
and her “unborn
child.” §1395dd(e)(1)(A)(i). And even if there were some ambiguity
in the statutory text, we would be obligated to resolve that
ambiguity in favor of the State because EMTALA was enacted under
the Spending Clause, and as we have held time and again, conditions
attached to the receipt of federal funds must be unambiguous.
Arlington Central School Dist. Bd. of Ed. v.
Murphy,
548 U.S.
291, 296 (2006);
Pennhurst State School and Hospital v.
Halderman,
451 U.S.
1, 17 (1981). Here, no one who has any respect for statutory
language can plausibly say that the Government’s interpretation is
unambiguously correct. And in any event, Idaho never consented to
any conditions imposed by EMTALA and certainly did not
surrender control of the practice of medicine and the regulation of
abortions within its territory.
Recognizing the flaws in the Government’s theory
and Idaho’s “strong” likelihood of success, this Court stayed the
preliminary injunction pending appeal on January 5. And, wisely or
not, the Court also took the unusual step of granting certiorari
before Idaho’s appeal was heard by the Ninth Circuit. See this
Court’s Rule 11. Now the Court dismisses the writ and, what is
worse, vacates the stay.
This about-face is baffling. Nothing legally
relevant has occurred since January 5. And the underlying issue in
this case—whether EMTALA requires hospitals to perform abortions in
some circumstances—is a straightforward question of statutory
interpretation. It is squarely presented by the decision below, and
it has been exhaustively briefed and argued. In addition to the
parties’ briefs, we received 46
amicus briefs, including
briefs submitted by 44 States and the District of Columbia; briefs
expressing the views of 379 Members of Congress; and briefs from
prominent medical organizations. Altogether, we have more than
1,300 pages of briefing to assist us, and we heard nearly two hours
of argument. Everything there is to say about the statutory
interpretation question has probably been said many times over.
That question is as ripe for decision as it ever will be.
Apparently, the Court has simply lost the will to decide the easy
but emotional and highly politicized question that the case
presents. That is regrettable.
Having already taken the extraordinary step of
granting certiorari before judgment in order to decide whether the
Government’s new interpretation of EMTALA is correct, we have no
good reason to change course now. This is especially so because the
Court’s decision to reexamine the stay issued in January makes it
necessary to reassess whether Idaho showed a likelihood of success
on the merits, a question that is closely related to the question
whether Idaho or the Government has correctly interpreted EMTALA. I
will therefore proceed to analyze what EMTALA means.
I
A
The text of EMTALA shows clearly that it does
not require hospitals to perform abortions in violation of Idaho
law. To the contrary, EMTALA obligates Medicare-funded hospitals to
treat, not abort, an “unborn child.”
EMTALA imposes two main obligations on covered
hospitals. First, a hospital must, within its “capabilit[ies],”
“screen” “any individual” arriving at the emergency room without
regard to the individual’s ability to pay. §§1395dd(a), (h). The
purpose of this screening is to determine whether the individual
has an “emergency medical condition,” which EMTALA defines as
follows:
“a medical condition manifesting itself by
acute symptoms of sufficient severity (including severe pain) such
that the absence of immediate medical attention could reasonably be
expected to result in—
“(i) placing the health of the individual (or,
with respect to a pregnant woman, the health of the woman
or her
unborn child) in serious jeopardy,
“(ii) serious impairment to bodily functions,
or
“(iii) serious dysfunction of any bodily organ
or part.” §1395dd(e)(1)(A) (emphasis added).[
2]
When a hospital determines that an “emergency
medical condition” exists, it has two options. It may provide
“treatment” within the capability of its “staff and facilities.”
§1395dd(b)(1)(A). Or it may “transfer . . . the
individual” to another hospital that “has available space and
qualified personnel for the treatment” as long as the transfer
would effect a net benefit for the patient. §§1395dd(b)(1)(B),
(c)(2)(B)(i).
At no point in its elaboration of the screening,
stabilization, and transfer requirements does EMTALA mention
abortion. Just the opposite is true: EMTALA requires the hospital
at every stage to protect an “unborn child” from harm.
Begin with the screening provision, which
requires a hospital “to determine whether or not an emergency
medical condition (within the meaning of subsection (e)(1))
exists.” §1395dd(a). “[W]ith respect to a pregnant woman,”
subsection (e)(1) defines an emergency medical condition as one
that is sufficiently serious to “plac[e] . . . the health
of the woman
or her unborn child . . . in serious
jeopardy.” §1395dd(e)(1)(A)(i) (emphasis added). Thus, if the
hospital identifies an emergency medical condition threatening the
child, it must “stabilize” that condition to ensure that the
child’s health does not remain in “jeopardy.” §§1395dd(b)(1)(A),
(e)(1)(A)(i). It goes without saying that aborting an “unborn
child” does not protect it from jeopardy.
Similarly, if a hospital wants to transfer a
pregnant woman to another facility, it may not do so unless, among
other things, a physician certifies directly or through an
intermediary that the medical benefits of transfer outweigh any
“increased risks” to the woman “and, in the case of labor, to the
unborn child.” §§1395dd(c)(1)(A)(ii), (e)(1)(B). Thus, regardless
of whether a hospital chooses to treat or transfer a pregnant
woman, it must strive to protect her “unborn child” from harm.
The Government struggles mightily—but
unsuccessfully—to get around this language. First, the Government
argues that EMTALA’s repeated use of the term “individual,” coupled
with the Dictionary Act’s definition of that term, which does not
include an “unborn child,”[
3]
shows that “[a]ll of EMTALA’s duties—screening, stabilization, and
transfer—run to the ‘individual’ seeking care.” Brief for United
States 41. That assertion falls flat in light of EMTALA’s express
protection of the unborn child.
Besides, there is a simple explanation for
EMTALA’s repeated use of the term “individual,” and it provides no
support for the Government’s interpretation. Most of those
references involve conduct in which only the pregnant woman can
engage, such as going to an emergency room,[
4] receiving medical information,[
5] consenting to or refusing treatment,[
6] or filing suit.[
7] Many references concern transfer to another
facility,[
8] and when a
pregnant woman is transferred, her “unborn child” obviously goes
with her. Another reference concerns a woman’s “emergency medical
condition,” which, as noted, includes conditions that jeopardize
her “unborn child.”[
9] And some
references expressly mention both the “individual” and “the unborn
child.”[
10] No use of the
term “individual” supports the Government’s interpretation.
Second, based on a provision stating that an
individual may not be treated without consent, §1395dd(b)(2), the
Government infers that “it is for the pregnant woman, not state
law, to decide how to proceed” when her health is at risk. Brief
for United States 43. The Government’s logic is faulty. The right
to withhold consent does not necessarily carry with it the right to
demand whatever cannot be done without consent.
X may
withhold consent to a contract with
Y, but that does not
mean that
X may demand to enter into such a contract. A
person may not be forced to assume the duties of the Presidency
without consent, but it does not follow that this person may demand
to be sworn in as President.
Or, to provide an example that is more closely
related to the matter at hand, the right to refuse medical
treatment without consent does not entail the right to demand
treatment that is prohibited by law. Cancer patients have the right
to refuse treatment that their doctors recommend, but they do not
have a right to obtain whatever treatment they want, such as the
administration of a drug that cannot legally be used in this
country. Cf. 21 U. S. C. §360bbb–0a (granting terminal
patients the right to try experimental drugs). Likewise here, a
woman’s right to withhold consent to treatment related to her
pregnancy does not mean that she can demand an abortion.
For these reasons, the text of EMTALA
conclusively shows that it does not require hospitals to perform
abortions.
B
For those who find it appropriate to look
beyond the statutory text, the context in which EMTALA was enacted
reinforces what the text makes clear. Congress designed EMTALA to
solve a particular problem—preventing private hospitals from
turning away patients who are unable to pay for medical care.
H. R. Rep. No. 99–241(I), pt. 1, p. 27 (1985); K. Treiger,
Preventing Patient Dumping: Sharpening the COBRA’s Fangs, 61
N. Y. U. L. Rev. 1186, 1188 (1986). And none of many briefs
submitted in this suit has found any suggestion in the proceedings
leading up to EMTALA’s passage that the Act might also use the
carrot of federal funds to entice hospitals to perform abortions.
To the contrary, EMTALA garnered broad support in both Houses of
Congress, including the support of Members such as Representative
Henry Hyde who adamantly opposed the use of federal funds to abet
abortion.[
11]
It is also telling that the Congress that
initially enacted EMTALA in 1986 and the one that amended it in
1989 also passed appropriations riders under what is now known as
the Hyde Amendment (named after Representative Hyde) to prevent
federal funds from facilitating abortions, except in limited
circumstances. See
Harris v.
McRae,
448 U.S.
297, 302 (1980). Between 1981 and 1993—the very period when
EMTALA was enacted and amended—the Hyde Amendment contained only
one exception: for abortions necessary to save the life of the
pregnant woman. Congressional Research Service, E. Liu & W.
Shen, The Hyde Amendment: An Overview 1 (2022); see §204, 99Stat.
1119 (1986 Hyde Amendment). The Hyde Amendment thus prohibited
federal funds from paying for the health-related abortions that the
Government says EMTALA mandates. It would have been strange indeed
if a Congress that repeatedly sought to prevent federal funding of
abortions simultaneously enacted a law that, as interpreted by the
Government, requires hospitals and physicians to perform that very
same procedure.
The Government’s reading of EMTALA is doubly
strange given that the President who signed that law repeatedly
promised not to use federal funds to subsidize or require the
provision of abortions. Less than three months before signing
EMTALA, President Reagan told participants in the annual March for
Life that “the resources of government are not [to be] used to
promote or perform abortions.” The American Presidency Project,
Remarks to Participants in the March for Life Rally (Jan. 22,
1986). The next year, he touted his administration’s work “to
restrict the use of Federal funds to perform abortions.”
Id., Remarks to Participants in the March for Life Rally
(Jan. 22, 1987). In another 1987 speech, he promised that his
administration would “oppose any legislation that would require
individuals or institutions, public or private, to finance or
perform abortions.”
Id., Remarks at a White House Briefing
for Right to Life Activists (July 30, 1987). And his 1986 and 1987
messages to Congress repeated that promise. See
id., Message
to the Congress on “A Quest for Excellence” (Jan. 27, 1987);
id., Message to the Congress on America’s Agenda for the
Future (Feb. 6, 1986).
Around the same time, President Reagan’s HHS
Secretary testified before Congress that “the Administration
steadfastly opposes [the] creation of [a] program which would
encourage, promote or finance the performance of abortions.”
Statement of the Hon. Margaret M. Heckler, in Budget
Reconciliation: Hearings before the Senate Committee on Finance,
99th Cong., 1st Sess., pt. 1, p. 273 (1985). It beggars belief
that President Reagan would have happily signed EMTALA into law if
it did what he “steadfastly oppose[d].”
Ibid.
C
Desperate to find some crumb of support for
its interpretation, the Government scrapes together a handful of
sources that it says evidence a general understanding that EMTALA
requires hospitals to perform health-related abortions prohibited
by Idaho law. None of these sources stands for that
proposition.
First, the Government searched a vast database
of HHS enforcement decisions and located six occurring between 2010
and 2023 that it finds helpful. It is not obvious why those
enforcement decisions—which postdate EMTALA by more than 20
years—shed light on its original meaning. And it is even less clear
why they justify the Government’s claim that EMTALA preempts Idaho
law. Five of the six cases involved ectopic pregnancies, which the
Idaho law does not cover. See Idaho Code Ann. §18–604(1)(c)
(excluding ectopic pregnancies from the definition of “abortion”).
In the remaining case, the hospital was faulted, not for failing to
perform an abortion, but for discharging a sick pregnant woman
without calling for an ambulance to transport her to another
hospital.[
12]
The Government also seizes upon a provision in
the Affordable Care Act stating that “[n]othing in this Act shall
be construed to relieve any health care provider from providing
emergency services as required by State or Federal law, including
. . . EMTALA.” 42 U. S. C. §18023(d) (internal
quotation marks omitted). Because this provision was placed in a
section of the Act concerning abortion, the Government infers that
it reflects a congressional understanding that EMTALA sometimes
requires abortions. Brief for United States 19–20. That inference
is totally unwarranted. The provision in question refers to the
entire massive Affordable Care Act, not just the relatively few
provisions concerning abortion. Compare §18023(d), with §18023(c)
(referring more narrowly to “this subsection”). It reaffirms the
duty of participating hospitals to comply with EMTALA, but it does
not expand what the text of EMTALA requires.[
13] So this provision cannot support the
Government’s interpretation of EMTALA either.
II
As the previous Part shows, EMTALA’s text and
context decisively refute the Government’s interpretation. But
there is a third strike against the Government’s position: EMTALA
is an exercise of Congress’s spending power. And when Congress
relies on its authority to attach conditions to the receipt of
federal funds, special rules apply.
Spending Clause legislation operates “much in
the nature of a contract: in return for federal funds, the
[recipients] agree to comply with federally imposed conditions.”
Pennhurst, 451 U. S., at 17. These conditions do not
bind unless and until they are accepted, and private parties “can
opt out of spending programs” at will, “completely nullifying
whatever force the spending conditions once had.”
Health and
Hospital Corporation of Marion Cty. v.
Talevski, 599
U.S. 166, 201 (2023) (Thomas, J., dissenting); accord,
Townsend v.
Swank,
404
U.S. 282, 292 (1971) (Burger, C. J., concurring in result)
(“[A]herence to [Spending Clause] provisions . . . is in
no way mandatory”). “[T]he ‘legitimacy of Congress’ power’ ”
to enforce conditions tied to federal funds depends on whether the
parties who accepted federal funds also “ ‘voluntarily and
knowingly’ ” accepted the conditions.
Cummings v.
Premier Rehab Keller, 596 U.S. 212, 219 (2022) (quoting
Barnes v.
Gorman,
536 U.S.
181, 186 (2002)).
Because the enforcement of conditions attached
to the receipt of federal money depends on a recipient’s knowing
and voluntary consent,
“the conditions must be set out
‘unambiguously.’ ”
Arlington Central, 548 U. S.,
at 296 (quoting
Pennhurst, 451 U. S., at 17). And
recipients must be given a “legitimate choice whether to accept the
federal conditions.”
National Federation of Independent
Business v.
Sebelius,
567 U.S.
519, 578 (2012) (opinion of Roberts, C. J.); accord,
Steward Machine Co. v.
Davis,
301
U.S. 548, 590 (1937). The Government’s interpretation founders
at both points.
First, consider the requirement that EMTALA
speak unambiguously. Even if it were possible to read EMTALA as
requiring abortions prohibited by Idaho law, it is beyond dispute
that such a requirement is not unambiguously clear. The statute
does not mention abortion, let alone expressly bind hospitals to
perform abortions contrary to state law.
The need for clear statutory language is
especially important in this suit because the Government’s
interpretation would intrude on an area traditionally left to state
control, namely, the practice of medicine. We typically expect
Congress to “ ‘make its intention “clear and manifest” if it
intends to pre-empt the historic powers of the States.’ ”
Gregory v.
Ashcroft,
501 U.S.
452, 461 (1991) (quoting
Rice v.
Santa Fe Elevator
Corp.,
331 U.S.
218, 230 (1947)); see also
Gonzales v.
Oregon,
546 U.S.
243, 274 (2006) (“[T]he background principles of our federal
system also belie the notion that Congress would use such an
obscure grant of authority to regulate areas traditionally
supervised by the States’ police power”).
Second, consider the requirement that parties be
given a choice before being bound by Spending Clause conditions.
The Government’s interpretation purports to limit Idaho’s choices
about what conduct to criminalize. But Idaho never “agree[d]” to be
bound by EMTALA,[
14]
Cummings, 596 U. S., at 219, let alone to surrender its
historic power to regulate the practice of medicine or the
performance of abortions within its borders.
The Idaho Legislature takes its argument against
preemption even further. It contends that EMTALA cannot preempt the
State’s abortion regulations because Idaho is not a party to the
agreement between the Federal Government and the hospitals that
take Medicare funds. See Brief for Petitioners in No. 23–726, pp.
50–51. As it explains, States cannot be bound by terms that they
never accepted, so it is hard to see how a third party’s agreement
with the Federal Government can deprive a State of the ability to
enforce its criminal laws. Accord,
Talevski, 599 U. S.,
at 212 (Thomas, J., dissenting) (“[E]ven those who held the
broadest conception of the spending power recognized that it was
only a power to spend, not a power to impose binding requirements
with the force of federal law”).
The potential implications of permitting
preemption here are far-reaching. Under the Government’s view,
Congress could apparently pay doctors to perform not only emergency
abortions but also third-trimester elective abortions or eugenic
abortions. It could condition Medicare funds on hospitals’ offering
assisted suicide even in the vast majority of States that ban the
practice. It could authorize the practice of medicine by any doctor
who accepts Medicare payments even if he or she does not meet the
State’s licensing requirements.
While the Government is not troubled by the
potential consequences of its preemption argument, Congress was
sensitive to state prerogatives. The Medicare Act, in which EMTALA
is situated, disclaims any construction that would “authorize any
Federal officer or employee to exercise any supervision or control
over the practice of medicine or the manner in which medical
services are provided” in a particular State. 42 U. S. C.
§1395. This disclaimer evidences a desire to “minimize federal
intrusion” into state healthcare regulation.
Massachusetts
Medical Soc. v.
Dukakis, 815 F.2d 790, 791 (CA1 1987)
(opinion of Breyer, J.). EMTALA’s narrow preemption clause also
respects core state powers by providing that the Act “do[es] not
preempt any State or local law requirement, except to the extent
that the requirement directly conflicts with a requirement of this
section.” §1395dd(f ). This phrasing signals that EMTALA’s
default position is coexistence with state law.
In response to the Legislature’s argument, the
Government claims that a handful of our cases have held that
Spending Clause statutes can preempt the laws of non-consenting
States, but those cases do not begin to settle the question at
hand. Two are entirely inapposite.[
15] And the remaining cases simply upheld the Federal
Government’s ability to prevent the use of federal money for
purposes other than those intended by Congress.[
16] The Government has not identified any
decision holding that a federal law enacted under the Spending
Clause preempts a state criminal law or public health
regulation.
For present purposes, it is not necessary to
decide whether the Legislature’s theory is correct. At a minimum,
however, it provides yet another reason to be wary about
interpreting EMTALA to displace the core powers of a non-consenting
State without unmistakable clarity regarding the meaning of the
federal law.
* * *
In sum, the Government’s new interpretation of
EMTALA is refuted by the statutory text, the context in which the
law was enacted, and the rules of interpretation that we apply to
Spending Clause legislation. We should reject the Government’s
interpretation and put that matter to rest.[
17]
III
Even if the Court is unwilling to decide the
statutory interpretation question, there is no excuse for vacating
the stay of the preliminary injunction. In order to obtain that
injunction, the Government was required to make a strong showing
that it was likely to prevail on the merits. See
Munaf v.
Geren,
553 U.S.
674, 690 (2008). And as I have explained, its argument was
almost certain to lose. That in itself is sufficient to preclude
continuation of the preliminary injunction.
Why then have six Justices voted to vacate the
stay? The
per curiam itself provides no explanation. In
separate opinions, three of the six agree with the Government’s
interpretation of EMTALA, see
supra, at 15, n. 17, and
that at least is an explanation that would make sense if the
premise (the correctness of the Government’s interpretation) were
sound. As for the remaining three, their only explanation is that
“the injunction will not stop Idaho from enforcing its law in the
vast majority of circumstances” and that therefore Idaho cannot
show that it will be irreparably harmed by allowing the injunction
to remain in place during the pendency of the appeal.
Ante,
at 7 (Barrett, J., joined by Roberts, C. J., and Kavanaugh,
J., concurring). That justification is patently unsound.
“ ‘[A]ny time a State is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a
form of irreparable injury.’ ”
Maryland v.
King,
567 U.S. 1301, 1303 (2012) (Roberts, C. J., in chambers). And
in this case, Idaho’s injury is not abstract. As I will explain, it
is very likely that the preliminary injunction will lead to more
abortions, including in at least some cases where the fetus is
viable. The State of Idaho wants to prevent that; the preliminary
injunction stands in its way. Isn’t that enough to constitute
irreparable harm?
The Justices who have joined Justice Barrett’s
concurrence claim that the parties’ briefs and oral arguments seem
to have narrowed the degree to which EMTALA, as interpreted by the
Government, conflicts with the Idaho law,
ante, at 7–8, but
all the parties continue to insist that the laws conflict. The
Solicitor General argued that EMTALA’s focus on a pregnant woman’s
health is broader than Idaho’s life-of-the-mother exception. In
forceful terms, she told us: “In Idaho, doctors have to shut their
eyes to everything except death,” whereas under EMTALA, a physician
is supposed to think about serious threats to a pregnant woman’s
health. Tr. of Oral Arg. 102. In light of this perceived conflict,
the Solicitor General said it was “gravely mistaken” to suggest
that “there really isn’t in operation a difference between” EMTALA
and Idaho law.
Id., at 101–102.
Idaho agreed that the Government’s
interpretation of EMTALA conflicts with state law. In particular,
the State worried that “the United States’ novel theory” would
“authorize emergency-room doctors to perform abortions” for
mental-health reasons and would thus “turn emergency rooms into
federal abortion enclaves governed not by state law but by
subjective physician judgment.” Brief for Petitioner in No. 23–727,
p. 30; see also Tr. of Oral Arg. 45–46.
Thus, whatever narrowing may have occurred
during briefing and argument in this Court, both the Government and
the State of Idaho fervently maintain that it matters whether the
Idaho law is enforced. Do any Justices in the majority seriously
disagree? Do any of them think that the parties, not to mention
their armies of
amici, are fighting about nothing?
Three of the six Justices in the majority also
agree that there is a conflict—and judging from their fiery
rhetoric, a big one. See
ante, at 1 (Kagan, J., joined by
Sotomayor, J., and by Jackson, J., as to Part II, concurring);
ante, at 7 (Jackson, J., concurring in part and dissenting
in part). And they are correct to this extent: there is a real
conflict.
A
I begin with the Government’s argument that
“there are numerous conditions” that may afflict a pregnant woman
“where a doctor’s immediate concern is not death.” Tr. of Oral Arg.
103. In those cases, the Government explains, a doctor might be
worried about serious risks to the woman’s “health.”
Ibid.
In the Government’s telling, EMTALA requires hospitals to perform
an abortion on demand in these circumstances.
Idaho law says otherwise. An Idaho doctor may
not perform an abortion unless the doctor “determine[s], in his
good faith medical judgment . . . , that the
abortion [is] necessary to prevent the death of the pregnant
woman.” Idaho Code Ann. §18–622(2)(a)(i). And even then, the doctor
must “attemp[t] to perform the abortion in the manner that
. . . provide[s] the best opportunity for the unborn
child to survive,” unless doing so “would . . . pos[e] a
greater risk of the death of the pregnant woman.”
§622(2)(a)(ii).
These standards do not require a doctor to be
“objective[ly] certai[n]” that the abortion is “ ‘necessary’
to save the woman’s life.”
Planned Parenthood, 171 Idaho, at
445, 522 P. 3d, at 1203 (emphasis deleted). Nor does Idaho law
require that the risk of death be particularly immediate.
Ibid. Indeed, the Idaho Supreme Court has explained that the
law “leaves wide room for the physician’s ‘good faith medical
judgment’ on whether [an] abortion was ‘necessary.’ ”
Ibid.; accord,
id., at 446, 522 P. 3d, at 1203
(noting that the Act “imposes a subjective standard based on the
individual physician’s good faith medical judgment”). And any
latitude, it said, “ ‘operates for the benefit, not the
disadvantage, of the pregnant woman.’ ”
Id., at
445–446, 522 P. 3d, at 1203–1204. Even so, Idaho’s law is
focused on “death,” and a doctor must be able to say in “good
faith” that he or she was acting to preserve the woman’s life, not
simply her health. Idaho Code Ann. §18–622(2)(a)(i).
These different considerations—health versus
life—may lead to different outcomes. For instance, consider the
situation of a woman who experiences a condition that was discussed
in the briefs and at argument: preterm prelabor rupture of
membranes (PPROM), which occurs when a woman’s amniotic sac breaks
before the 37th week of pregnancy. 1 App. 295. The Members of this
Court are not physicians and should therefore be wary about
expressing conclusions about medical issues. But guidance provided
by prominent medical institutions is sufficient to show how Idaho
law and EMTALA, as interpreted by the Government, may conflict in
such cases.
If a woman experiences PPROM between the 34th
and 37th week of pregnancy and does not go into labor, her
physician is likely to recommend that labor be induced.[
18] In that situation, it does not
appear that the risk of conflict is high.
On the other hand, when PPROM occurs earlier
than that, the chances of conflict are greatly increased. If PPROM
occurs before the 34th week and the woman’s pregnancy continues,
she may experience conditions such as an infection of the amniotic
fluid, inflammation of the uterine lining, hemorrhage, or
sepsis.[
19] However,
life-threatening complications are not inevitable, and according to
the PPROM Foundation, death is “extremely rare.”[
20] A physician may try to delay labor by
putting the woman on bed rest and administering steroids to help
the baby’s lungs grow and antibiotics to prevent
infection.[
21]
When PPROM occurs before the 24th week of
pregnancy, the potential for conflict appears to be even higher.
But in that situation, it may still be possible to manage the
situation until the baby can be delivered,[
22] and there is a chance of a good outcome for
both the mother and child, although studies have yielded different
results.[
23] Thus, when
PPROM occurs before the 34th week of pregnancy, there is a risk to
the health of both the woman and her unborn child.
In these situations, the Defense of Life Act
requires doctors to consider whether performing an abortion is
necessary to prevent the woman’s death. Because this is a
“subjective” standard,
Planned Parenthood, 171 Idaho, at
446, 522 P. 3d, at 1204, different doctors may reach different
conclusions about when PPROM endangers the woman’s life. At least
some may conclude in some cases of PPROM occurring before the 34th
week of pregnancy that the woman’s life is not endangered since she
may never develop a serious infection, let alone life-threatening
sepsis or any other potentially fatal condition, if she receives
proper treatment. See 1 App. 306–307. Rather, those doctors may
believe that Idaho law requires them to try to delay delivery long
enough to save the child’s life, unless PPROM becomes sufficiently
“severe” to cause “infection and serious risk of sepsis.” See,
e.g., 2
id., at 547. [
24]
According to the Government’s experts, however,
EMTALA requires a hospital to perform an abortion at the woman’s
request whenever PPROM is diagnosed, even if the woman has not yet
developed an infection or any other health complications. That is
because, they assert, it can be “reasonably expected” that, in “the
absence of immediate medical attention,” PPROM would “plac[e] the
health” of the pregnant woman “in serious jeopardy” or cause
“serious dysfunction” to her reproductive organs.
§§1395dd(c)(1)(A)(ii), (e)(1)(A)(i) and (iii); see,
e.
g., 2 App. 594 (“Providing stabilizing treatment in
the form of termination of pregnancy at the point of diagnosis
would be an appropriate means to preserve the patient’s
reproductive organs at that time”). Thus, in PPROM cases, there may
be an important conflict between what Idaho law permits and what
EMTALA, as interpreted by the Government, demands. And the same may
be true with respect to other conditions that a pregnant woman may
experience.
This gap between the Idaho law and the
Government’s interpretation of EMTALA matters. Idaho has always
permitted abortions that are necessary to preserve the life of a
pregnant woman, but it has not allowed abortions for other
non-life-threatening medical conditions.
Planned Parenthood,
171 Idaho, at 391–394, 522 P. 3d, at 1149–1152 (summarizing
Idaho’s historical restrictions); see also
Dobbs, 597
U. S., at 302–330 (compiling other state statutes with
identical exceptions). This balance reflects Idaho’s judgment about
a difficult and important moral question. See
Planned
Parenthood, 171 Idaho, at 437–438, 522 P. 3d, at
1195–1196. By requiring Idaho hospitals to strike a different
balance, the preliminary injunction thwarts the will of the people
of Idaho as expressed in law by their elected representatives.
B
I now turn to Idaho’s claim that the
Government’s reading of EMTALA would authorize abortions for
mental-health reasons. My colleagues dismiss this concern because
at argument, the Solicitor General “emphatically disavowed the
notion that an abortion is ever required as stabilizing treatment
for mental health conditions.”
Ante, at 5 (Barrett, J.,
concurring). But it is hard to see how the Government could reach
that conclusion. At oral argument, the Solicitor General conceded
that the term “health” in EMTALA includes mental health, Tr. of
Oral Arg. 77–78, and if that is so, it is not difficult to imagine
a situation in which the Government’s interpretation of EMTALA
could require an abortion.
Suppose, for example, that a woman in the 10th
week of gestation experiences serious depression due to her
pregnancy. If she asks emergency medical professionals for
treatment, her medical care providers might conclude that her
continued pregnancy could “reasonably be expected” to seriously
jeopardize the woman’s mental health. §1395dd(e)(1)(A). Under the
Government’s reading of EMTALA, the woman would then have the right
to “make an informed decision” about the treatment she received.
Brief for United States 41. If the woman preferred to abort rather
than manage her depression alongside her pregnancy, it is not
apparent why the Government’s reading of EMTALA would not require
that abortion.
We have seen where a rule permitting abortions
to protect the psychological health of pregnant women may lead. In
Roe, the Court held that a woman had the right to obtain a
post-viability abortion that was deemed “necessary, in appropriate
medical judgment, for the preservation of the life or health of the
mother.”
Roe v.
Wade,
410 U.S.
113, 165 (1973). In the companion case
Doe v.
Bolton,
410 U.S.
179 (1973), the Court wrote that a doctor, in judging whether
an abortion was needed to preserve a pregnant woman’s health, could
consider “all factors—physical, emotional, psychological, familial,
and the woman’s age—relevant to the well-being of the patient.”
Id., at 192. That decision was viewed by many as essentially
preventing States from restricting post-viability
abortions.[
25] As Harvard
Law School Professor Mary Ann Glendon put it: “[W]hen
Roe is
read with
Doe, third-trimester restrictions are effectively
ruled out as well—for
Roe’s dictum that such restrictions
might be permissible if they did not interfere with the mother’s
health was negated by
Doe’s definition of ‘health’ as
‘well-being.’ ” The Women of
Roe v.
Wade
(2003).
The Solicitor General tried to explain why the
Government’s interpretation would not lead down this path, but her
explanation is hard to understand. She said that mental-health
emergencies “could never lead to pregnancy termination” because
abortion “is not the accepted standard of practice to treat any
mental health emergency.” Tr. of Oral Arg. 77–78; accord, Brief for
United States 26, n. 5.
That assertion appears to be inconsistent with
the position taken by prominent medical associations that endorse
abortion for mental-health reasons as an accepted standard of
practice. See,
e.
g., American Psychiatric
Association, Position Statement on Abortion and Women’s
Reproductive Healthcare Rights (Mar. 2023) (“Freedom to act to
interrupt pregnancy must be considered a mental health
imperative”); American Psychological Association, Resolution
Affirming and Building on APA’s History of Support for Reproductive
Rights (Feb. 2022).
For these reasons, there is a real potential for
conflict between the Idaho law and the Government’s interpretation
of EMTALA, and in my judgment, the Court seriously errs by vacating
the stay we issued earlier this year.
* * *
Today’s decision is puzzling. Having taken the
unusual step of granting certiorari before Idaho’s appeal could be
heard by the Ninth Circuit, the Court decides it does not want to
tackle this case after all and thus returns the appeal to the Ninth
Circuit, which will have to decide the issue that this Court now
ducks. What is more, the Court vacates the stay it issued earlier
this year even though the majority fails to provide any facially
plausible explanation for doing so.
I cannot endorse this turn of events and
therefore respectfully dissent.