Democrats urge appeals court to uphold hospitals' emergency abortion care

Nearly every House and Senate Democrat is calling on a federal appeals court to affirm that hospitals participating in Medicare must provide emergency abortion care to patients when necessary.

In a brief to the U.S. Court of Appeals for the 9th Circuit on Tuesday, 259 Democrats wrote that the federal Emergency Medical Treatment and Labor Act (EMTALA) makes clear that hospitals must provide abortion as a stabilizing treatment in a medical emergency, even in states that ban abortion.

The appeals court will hear oral arguments in December in a case that centers on Idaho’s challenge to that law. The Biden administration originally sued Idaho in 2022 over its strict abortion ban that provides an exception to save a patient’s life, but not to preserve their health.

The case eventually made its way to the Supreme Court but was dismissed in June as improvidently granted without resolving the core issues in the case. The justices sent it back to the 9th Circuit and lifted an earlier ruling that allowed Idaho’s law to stand unchallenged.

As a result, doctors in Idaho have been able to perform emergency abortions despite state-level restrictions while the case is being litigated. Prior to the Supreme Court’s order, Idaho doctors had been sending pregnant patients to out-of-state hospitals.

EMTALA requires federally funded hospitals to provide stabilizing care to emergency room patients no matter their ability to pay. Abortion is the standard of care to stabilize many pregnancy-related conditions, and hospitals have long provided the procedure when necessary.

According to the Democrats, EMTALA is clear: If a doctor determines that abortion constitutes stabilizing treatment for a pregnant patient, federal law requires the hospital to offer it.

“Yet Idaho has made providing that care a felony, in direct contravention of EMTALA’s mandate,” the Democrats wrote.

The brief was signed by 211 House Democrats and 48 Democratic senators.

“Respecting the supremacy of federal law is about more than just protecting our system of government; it is about protecting people’s lives,” they wrote. “If this Court allows Idaho’s near-total abortion ban to supersede federal law, pregnant patients in Idaho will continue to be denied appropriate medical treatment, placing them at heightened risk for medical complications and severe adverse health outcomes.”

The Biden administration invoked EMTALA in the wake of the Supreme Court decision that overturned Roe v. Wade. The administration said state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the federal statute.

The Department of Justice argued that stabilizing treatment can include an abortion if it’s deemed medically necessary.

But EMTALA doesn’t specifically mention abortion and doesn’t outline which procedures should be provided. Idaho argued state law supersedes the federal requirement and that states can create a carve-out for abortion if the patient’s life is not at risk.

The Democrats in their brief said the court should dismiss that argument, because the law is deliberately broad.

"It is irrelevant that EMTALA does not explicitly list abortion as a stabilizing treatment; indeed, the statute does not list any specific stabilizing treatments,” they wrote. “This approach makes sense given the way Congress drafts statutes: it does not write laws by articulating every possible scenario those laws might cover.”