Decision Alert: Supreme Court Does Not Resolve Whether Federal Law Preempts Certain State Abortion Restrictions, Remands for Further Consideration

The Supreme Court dismissed the consolidated cases Moyle v. United States and Idaho v. United States without reaching the merits of whether the federal Emergency Medical Treatment and Labor Act (EMTALA) preempts an Idaho law criminalizing most abortions. As a result, a lower court order enjoining the Idaho law goes back into effect.

As summarized in Dykema’s May 2024 edition, EMTALA requires that Medicare-funded hospitals “provide for an appropriate medical screening examination within [its] capability” to identify “emergency medical condition[s]” for any individual who comes to an emergency department. After the Supreme Court’s 2022 decision in Dobbs overruling Roe v. Wade, an Idaho law criminalizing most abortions was set to take effect. The federal government moved to preliminarily enjoin Idaho’s law, arguing EMTALA preempted the state law because it required hospitals to provide essential emergency services, including abortions, “needed to prevent serious health harms.” The district court, finding that the Idaho law conflicted with EMTALA, enjoined the State from enforcing the abortion restrictions. A Ninth Circuit panel stayed the injunction, but the en banc court vacated the stay. When the state parties asked the Supreme Court for emergency relief before a merits decision by the Ninth Circuit, the Court granted certiorari and stayed the district court’s injunction permitting Idaho to enforce the law in the meantime.

In an unsigned order, however, the Court dismissed the case as improvidently granted and lifted the stay, meaning that the Idaho law is again enjoined. Several justices wrote separately to explain their divergent views on dismissal, the stay, and the merits of the question presented. Those separate writings are purely advisory. It appears that five of the Justices agreed to dismiss the certiorari petitions, with four of the Justices dissenting and wanting to resolve the cases on their merits.

Justice Kagan, joined by Justice Sotomayor and in part by Justice Jackson, wrote that dismissal was appropriate because “Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or [the Court’s] early consideration of this dispute.” Justice Kagan explained her view that Idaho law conflicted with EMTALA’s requirement to provide emergency medical services and that the district court was right to enjoin the law. She also emphasized the practical effects of the law on women in Idaho, noting that some “medically fragile women” had to be airlifted to other states to obtain abortions.

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, agreed dismissal was warranted based on changes to Idaho law. After the district court issued its injunction, the Idaho Supreme Court construed the scope of Idaho’s state law restricting abortion. The Idaho legislature also amended the statutory definition of “abortion.” Because “Idaho law has significantly changed—twice,” she concluded, it would be “imprudent” to consider the merits of the dispute.

Justice Jackson concurred and dissented in part. She agreed with lifting the stay and with Justice Kagan’s statutory analysis that EMTALA preempts Idaho law but disagreed with dismissing the certiorari petitions as improvidently granted. Instead, she urged the Court to consider the merits of the cases, bringing clarity and certainty to the conflict.

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, dissented, arguing that “the question is as ripe for decision as it ever will be.” He explained his statutory analysis that EMTALA “does not require hospitals to perform abortions.” Because EMTALA does not impose such a requirement, he reasons, it does not preempt state law. Justice Alito also criticized the Court for returning the case to the Ninth Circuit “to decide the issue that this Court now ducks,” and vacating the stay without “any facially plausible explanation for doing so.”

Takeaways

• Despite not reaching the merits here, the Court may soon consider whether EMTALA preempts state law restrictions on certain emergency abortion services. Earlier this year, the Fifth Circuit held that EMTALA does not preempt a Texas law similar to the one here. The United States has petitioned for certiorari in that case.
• A majority of the justices staked out positions on the preemption question even though the Court did not reach the merits. Justices Sotomayor, Kagan, and Jackson agreed that EMTALA preempts Idaho law, while Justices Thomas, Alito, and Gorsuch took the opposite view. When the Court eventually decides the issue, the outcome will likely depend on the votes of Chief Justice Roberts and Justices Kavanaugh and Barrett.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, or A. Joseph Duffy, IV.