FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 23-35440 23-35450 Plaintiff-Appellee, D.C. No. 1:22-cv-00329-BLW v.
STATE OF IDAHO, ORDER
Defendant,
v.
MIKE MOYLE, Speaker of the Idaho House of Representatives; CHUCK WINDER, President Pro Tempore of the Idaho Senate; THE SIXTY-SEVENTH IDAHO LEGISLATURE, Proposed Intervenor- Defendants,
Movants-Appellants.
Before: Bridget S. Bade, Kenneth K. Lee, and Lawrence VanDyke, Circuit Judges.
Order by Judge VanDyke
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court
“heed[ed] the Constitution and return[ed] the issue of abortion to the people’s elected
representatives.” 142 S. Ct. 2228, 2243 (2022). After Dobbs, a number of states, including Idaho, have exercised that prerogative to enact abortion restrictions. In
response, the federal government has sued Idaho claiming that a federal law
unrelated to abortion preempts the will of the people of that state, through their
elected representatives, to “protect[] fetal life,” as Dobbs described it. Id. at 2261.
Because there is no preemption, the Idaho Legislature is entitled to a stay of the
district court’s order improperly enjoining its duly enacted statute.
BACKGROUND
In 2020, Idaho passed section 622, which prohibits most abortions in the state.
See S.B. 1385, 65th Leg., 2d Reg. Sess. (Idaho 2020). The law contained a trigger,
meaning that it was only to take effect thirty days after judgment was entered “in
any decision of the United States supreme court that restores to the states their
authority to prohibit abortion.” 2020 Idaho Sess. Laws 827. The law makes it a
crime for a healthcare provider to perform an abortion unless, among a few other
exceptions, “[t]he physician determine[s], 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 Code § 18-622(2)(a)(i). Idaho
law defines abortion as “the use of any means to intentionally terminate the clinically
diagnosable pregnancy of a woman with knowledge that the termination by those
means will, with reasonable likelihood, cause the death of the unborn child,” except
in a few listed circumstances. Idaho Code § 18-604.
2 Dobbs triggered section 622, after which the federal government challenged
Idaho’s law, arguing that it is preempted by the Emergency Medical Treatment and
Labor Act, 42 U.S.C. § 1395dd (EMTALA). EMTALA was enacted to prevent
hospitals that receive Medicare reimbursement from refusing to provide emergency
care to the indigent because of their inability to pay. Id. As relevant to this case, it
requires emergency room doctors to stabilize patients’ emergency medical
conditions before transferring them. The federal government moved for a
preliminary injunction to stop Idaho’s law from taking full effect on the trigger date
following Dobbs. The district court granted the preliminary injunction in August
2022 and denied reconsideration in May 2023. Both the State of Idaho and the Idaho
Legislature, which was allowed to intervene for purposes of the preliminary
injunction, have appealed the district court’s decision. The Legislature has also
moved for a stay of the injunction pending appeal. Because Idaho’s law is not
preempted by EMTALA and the equitable factors favor a stay, we grant the
Legislature’s motion to stay this case pending appeal.
DISCUSSION
We consider four factors when considering a request for a stay of a district
court’s injunction: “(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the
3 other parties interested in the proceeding; and (4) where the public interest lies.”
Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S.
770, 776 (1987)).
Each of the four Nken factors favors issuing a stay here. The Legislature has
made a strong showing that EMTALA does not preempt section 622. EMTALA
does not require abortions, and even if it did in some circumstances, that requirement
would not directly conflict with section 622. The federal government will not be
injured by the stay of an order preliminarily enjoining enforcement of a state law
that does not conflict with its own. Idaho, on the other hand, will be irreparably
injured absent a stay because the preliminary injunction directly harms its
sovereignty. And the balance of the equities and the public interest also favor
judicial action ensuring Idaho’s right to enforce its legitimately enacted laws during
the pendency of the State’s appeal.
I. The Legislature Has Made a Strong Showing That It Is Likely to Succeed on the Merits.
Under Nken, a stay applicant must make a “strong showing” that it is likely to
succeed on the merits. 556 U.S. at 434. This threshold is met because EMTALA
does not preempt section 622.
“When Congress has considered the issue of preemption and has included in
the enacted legislation a provision explicitly addressing that issue … there is no need
to infer congressional intent to preempt state laws from the substantive provisions
4 of the legislation.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992)
(alterations, internal quotation marks, and citations omitted). EMTALA contains an
express provision stating that “[t]he provisions of this section do not preempt any
State or local law requirement, except to the extent that the requirement directly
conflicts with a requirement of this section.” 42 U.S.C. § 1395dd(f) (emphases
added); see also Baker v. Adventist Health, Inc., 260 F.3d 987, 993 (9th Cir. 2001)
(“The statute expressly contains a non-preemption provision for state remedies.”
(citing § 1395dd(f))). Because this court looks to “[c]ongressional intent [as] the
sole guide in determining whether federal law preempts a state statute,” we must
look “only to this language and construe [EMTALA’s] preemptive effect as
narrowly as possible.” Draper v. Chiapuzio, 9 F.3d 1391, 1393 (9th Cir. 1993)
(citations omitted).
As this court has recognized, when determining the preemptive effect of
EMTALA “[t]he key phrase is ‘directly conflicts.’” Id. Direct conflicts occur in
only two instances. First, when compliance with both is a “physical impossibility.”
Id. (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43
(1963)); see also McClellan v. I-Flow Corp., 776 F.3d 1035, 1039 (9th Cir. 2015).
And second, when the state law is “an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.” Chiapuzio, 9 F.3d at 1393 (quoting
5 Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). In this case, neither type of conflict
exists.
A. It Is Not Impossible to Comply with Both EMTALA and Section 622. EMTALA was enacted to ensure that the poor and uninsured receive
emergency medical care at hospitals receiving Medicare reimbursement. See
Arrington v. Wong, 237 F.3d 1066, 1069 (9th Cir. 2001). It provides certain
procedures that hospitals must follow but does not set standards of care or
specifically mandate that certain procedures, such as abortion, be offered. But even
assuming that EMTALA did require abortions in certain, limited circumstances, it
would not require abortions that are punishable by section 622. So it still would not
be impossible to comply with both EMTALA and section 622.
In interpreting a statute, we must “start with the statutory text.” Tanzin v.
Tanvir, 141 S. Ct. 486, 489 (2020). The text of EMTALA shows that it does not
require hospitals to perform abortions. Instead, EMTALA requires a hospital to
determine whether an emergency medical condition is reasonably expected to place
“the health of the individual (or, with respect to a pregnant woman, the health of the
woman or her unborn child) in serious jeopardy, serious impairment to bodily
functions, or serious dysfunction of any bodily organ or part.” 42 U.S.C.
§ 1395dd(e)(1)(A) (omissions removed) (emphasis added). So an emergency
medical condition includes one that “plac[es] the health of the … unborn child[] in
6 serious jeopardy.” Id. Where such a condition exists, the hospital must stabilize the
condition before transferring the individual to another medical facility unless certain
conditions are met. Id. § 1395dd(b)(1). “[T]o stabilize” means “to provide such
medical treatment of the condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the condition is likely to result
from or occur during the transfer of the individual from a facility.” Id.
§ 1395dd(e)(3)(A).
EMTALA therefore has dual stabilization requirements: hospitals must ensure
that “no material deterioration of the condition” of a woman or her unborn child is
likely to occur. The assumption that EMTALA implies some hierarchy when
stabilization of the woman might require “a material deterioration of the condition”
of the child requires us to read in an implicit duty to perform abortions from the
explicit duty to stabilize, which is far beyond that required for a direct conflict.
The federal government nonetheless argues that because hospitals are required
to stabilize patients’ medical conditions, they must perform abortions because
abortion could be a “form of stabilizing treatment.” But EMTALA does not require
the State to allow every form of treatment that could conceivably stabilize a medical
condition solely because, as the government argues, a “relevant professional
determines such care is necessary.” In fact, EMTALA does not impose any
standards of care on the practice of medicine. Nor could it within the broader
7 statutory scheme. See Baker, 260 F.3d at 993. It certainly doesn’t require that a
hospital provide whatever treatment an individual medical professional may desire.
For example, a medical professional may believe an organ transplant is necessary to
stabilize a patient’s emergency medical condition, but EMTALA would not then
preempt a state’s requirements governing organ transplants.
Because Congress’s “clear and manifest” purpose confirms that EMTALA
does not impose specific methods of “stabilizing treatment,” we must assume “that
the historic police powers of the States [are] not to be superseded by” EMTALA.
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)). The purpose of EMTALA is “to prevent hospitals
[from] dumping indigent patients by either refusing to provide emergency medical
treatment or transferring patients before their conditions were stabilized.”
Arrington, 237 F.3d at 1069 (alternations, internal quotation marks, and citation
omitted). The purpose of EMTALA is not to impose specific standards of care—
such as requiring the provision of abortion—but simply to “ensure that hospitals do
not refuse essential emergency care because of a patient’s inability to pay.”
Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995). To read
EMTALA to require a specific method of treatment, such as abortion, pushes the
statute far beyond its original purpose, and therefore is not a ground to disrupt
Idaho’s historic police powers.
8 Even if the federal government were correct that EMTALA requires abortions
as “stabilizing treatment” in limited circumstances, EMTALA still would not
conflict with Idaho’s law. Section 622 includes an exception allowing abortion
when a “physician determine[s], in his good faith medical judgment and based on
the facts known to the physician at the time, that the abortion [is] necessary to
prevent the death of the pregnant woman.” Idaho Code § 18-622.
The district court concluded that there is a gap between what a doctor might
believe necessary to save the life of a pregnant woman and what might be reasonably
expected to place the health of her or her unborn child in serious jeopardy, seriously
impair their bodily functions, or cause serious dysfunction of any bodily organ or
part. Specifically, the district court invoked the supposed ambiguity in Idaho’s law
to construe it as creating a conflict with EMTALA. But almost all the examples in
the district court’s parade-of-horribles are no longer true, given the Idaho
Legislature’s recent amendment to the statute and clarification from the Supreme
Court of Idaho.
First, relying on declarations from certain doctors, the district court repeatedly
noted that the Idaho law’s ambiguity would interfere with doctors’ medical
judgment. For example, it held that “against the backdrop of these uncertain,
medically complex situations, [the statutory exception] is an empty promise—it does
not provide any clarity.” It added that it “offers little solace to physicians attempting
9 to navigate their way around both EMTALA and Idaho’s criminal abortion laws”
and that “Idaho law criminalizes as an ‘abortion’ what physicians in emergency
medicine have long understood” as required to save lives.
But after the district court issued its injunction, the Supreme Court of Idaho
authoritatively interpreted this state law provision as providing a broad, subjective
standard requiring the doctor, in his or her good faith medical judgment, to believe
it necessary to terminate the pregnancy. Planned Parenthood Great Nw. v. Idaho,
522 P.3d 1132, 1203 (Idaho 2023). Put another way, the Supreme Court of Idaho
clarified that the text of the exception means what it says: if a doctor subjectively
believes, in his or her good faith medical judgment, that an abortion is necessary to
prevent the death of the pregnant woman, then the exception applies. Id. Thus, the
district court’s reliance on declarations from certain doctors claiming that the law
would undermine their medical judgment is no longer valid.
Second, the district court also relied on some of the federal government’s
experts who argued that Idaho doctors could not terminate a pregnancy while
complying with section 622 because they could not be certain that an abortion is
necessary. But the Supreme Court of Idaho has made clear that “certainty” is not
the standard under Idaho law. That Court also held that the standard has no
imminency requirement. Id. at 1203–04. It explicitly held that the “necessary to
save the life of the mother” standard does not require certainty, a substantial risk of
10 death, or any other particular probability level. Id. Nor is a “medical consensus on
what is necessary to prevent the death of the woman … required ….” Id. at 1204
(internal quotation marks omitted). As the Supreme Court of Idaho put it, “[t]he
plain language of the [exception] leaves wide room for the physician’s ‘good faith
medical judgment’ on whether the abortion was ‘necessary to prevent the death of
the pregnant woman’ based on those facts known to the physician at that time.” Id.
at 1203.
Third, the district court heavily relied on ectopic pregnancies—mentioning
them eleven times in the opinion—as a justification for finding section 622 in direct
conflict with EMTALA. But Idaho recently amended its law to clarify that “the
removal of an ectopic or molar pregnancy” is not an abortion. See 2023 Idaho Sess.
Laws 906 (excluding from the statute’s definition of “abortion”). So that issue is
now moot.
Fourth, the district court emphasized that the life of the mother exception in
the statute was technically an affirmative defense, noting that an “affirmative
defense is an excuse, not an exception” and that this “difference is not academic.”
But Idaho amended the law to make it a statutory exception, not an affirmative
defense. 2023 Idaho Sess. Laws 908. So this objection, too, has been superseded
by events.
11 Given the statutory amendments and the Supreme Court of Idaho’s recent
decision, any ambiguity identified by the federal government and the district court
no longer exists: if a doctor believes, in his or her good faith medical judgment, that
an abortion is necessary to save the life of the mother, then the exception applies.
Neither the probability nor the imminency of death matters to the exception’s
application. Id. at 1203. For all the hypotheticals presented by the district court, the
conduct required by EMTALA has been shown to satisfy section 622’s “life of the
mother” standard, so the two laws would not conflict even if EMTALA actually
required abortions.
In sum, when a doctor determines an abortion is necessary to save the life of
the mother, termination of a pregnancy is not punishable by section 622. Idaho Code
§ 18-622. Therefore, even if the federal government were right that EMTALA
requires abortions in certain limited circumstances, EMTALA would not require
abortions that are punishable by section 622. The federal government is thus wrong
when it asserts that it is impossible to comply with both EMTALA and section 622.
B. Section 622 Does Not Pose an Obstacle to the Purpose of EMTALA.
Obstacle preemption occurs when, “under the circumstances of a particular
case, the challenged state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.” Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 373 (2000) (alterations and internal quotation marks
12 omitted) (quoting Hines, 312 U.S. at 67). “What is a sufficient obstacle is a matter
of judgment, to be informed by examining the federal statute as a whole and
identifying its purpose and intended effects ….” Id. (emphasis added).
As relevant here, “Congress enacted EMTALA to respond to the specific
problem of hospital emergency rooms refusing to treat patients who were uninsured
or who could otherwise not pay for treatment.” Baker, 260 F.3d at 993. EMTALA
was “not intended to create a national standard of care for hospitals or to provide a
federal cause of action akin to a state law claim for medical malpractice.” Id.; see
also Eberhardt, 62 F.3d at 1258 (“The statutory language of the EMTALA clearly
declines to impose on hospitals a national standard of care in screening patients.”).
This conclusion is “[c]onsistent with the statutory language” of EMTALA, id., under
which the duty to stabilize is “to provide such medical treatment of the condition as
may be necessary to assure, within reasonable medical probability, that no material
deterioration of the condition is likely to result from or occur during the transfer of
the individual from a facility ….” 42 U.S.C. § 1395dd(e)(3)(A). Under the language
of EMTALA, Congress left it to state healthcare standards to determine which
course of treatment “may be necessary” to prevent “material deterioration ….” See
id.
It is not the purpose of EMTALA to force hospitals to treat medical conditions
using certain procedures. Instead, EMTALA seeks to prevent hospitals from
13 neglecting poor or uninsured patients with the goal of protecting “the health of the
woman” and “her unborn child.” 42 U.S.C. § 1395dd(e)(1)(A). Section 622’s
limitations on abortion services do not pose an obstacle to EMTALA’s purpose
because they do not interfere with the provision of emergency medical services to
indigent patients.
II. The Legislature Has Shown Irreparable Harm Absent a Stay.
“[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) (alterations in original) (quoting New Motor
Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)). The district
court’s injunction prevents Idaho from enforcing section 622 as enacted by
representatives of its people, so the State easily meets its burden of showing
irreparable harm. The federal government’s two arguments to the contrary do not
convince us otherwise.
First, the government argues that the Legislature cannot establish irreparable
harm by pointing to harm to the State of Idaho itself. But it makes no difference to
our harm analysis that the State seeks the stay through its Legislature, rather than
through its Attorney General; the government’s argument to the contrary relies upon
a distinction without a difference. The State itself, not merely its officials, “suffers
a form of irreparable injury” when it cannot effectuate its statutes. Id. And the State
14 “is free to ‘empower multiple officials to defend its sovereign interests in federal
court.’” Berger v. N.C. State Conf. of the NAACP, 142 S. Ct. 2191, 2202 (2022)
(alteration omitted) (quoting Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142
S. Ct. 1002, 1011 (2022)). Here, Idaho law empowers the Legislature as a state
entity to represent those interests. See Idaho Code § 67-465. The Legislature may
thus invoke the State of Idaho’s irreparable harm.
Second, the federal government claims that the Legislature’s delay in
requesting the stay is “substantial and inexplainable,” and therefore prevents a
showing of irreparable harm. The record is somewhat mixed on this issue, but
usually “delay is but a single factor to consider in evaluating irreparable injury.” Arc
of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014). While “failure to seek judicial
protection can imply the lack of need for speedy action,” here there is no evidence
that the Legislature was “sleeping on its rights.” Id. at 990–91 (internal quotation
marks and citation omitted).
It appears that the extended period of time after the district court’s original
injunction here is instead explained primarily by the long time that court took in
ruling on Idaho’s reconsideration motions, together with other circumstances outside
the Legislature’s control. On September 7, 2022, only two weeks after the district
court granted the federal government’s injunction, the Legislature moved for
reconsideration. And in November 2022, it sent a letter to the court requesting a
15 ruling on the motion to reconsider. In January 2023, three months after the federal
government responded to the reconsideration motion and two months after the
Legislature requested an expedited ruling, the Supreme Court of Idaho issued a
decision authoritatively interpreting section 622. Idaho requested leave to file
supplemental briefing in federal court addressing the Supreme Court of Idaho’s
decision. The district court took another three months after the supplemental
briefing was complete to decide the motion for reconsideration; the Legislature was
not at fault for these delays. And the Legislature moved for a stay in the district
court on the same day it timely noticed its appeal of the district court’s denial of its
motion for reconsideration. We cannot say that the Legislature was clearly dilatory
in defending the State’s rights. The record suggests that the Legislature tried to
protect those rights before the district court before seeking a stay from this court.
III. The Balance of the Equities Favors a Stay.
The third and fourth Nken factors—“whether issuance of the stay will
substantially injure the other parties interested in the proceeding” and “where the
public interest lies”—also favor a stay. 556 U.S. at 435.
Idaho enacted section 622 to effectuate that state’s strong interest in protecting
unborn life. That public interest is undermined each day section 622 remains
inappropriately enjoined. Beyond that specific interest, improperly preventing Idaho
from enforcing its duly enacted laws and general police power also undermines the
16 State’s public interest in self-governance free from unwarranted federal interference.
See BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021) (“The public
interest is also served by maintaining our constitutional structure[.]”); Sierra Club v.
Trump, 929 F.3d 670, 677 (9th Cir. 2019) (public interest is served by “respecting
the Constitution’s assignment of … power”).
The federal government points to no injury to itself caused by Idaho’s law.
Instead, relying on its merits argument that Idaho’s law is preempted, it cites to cases
holding that “preventing a violation of the Supremacy Clause serves the public
interest.” But because Idaho’s law is not preempted, those arguments do not help
the federal government.
Beyond that inapposite concern, the federal government argues that a
continued stay will result in public health benefits for pregnant women needing
emergency care, and also benefit hospitals in neighboring states who would
otherwise be forced to treat women denied such care in Idaho. But Idaho’s law
expressly contemplates necessary medical care for pregnant women in distress. See
Idaho Code § 18-622(4). So the federal government’s argument that pregnant
women will be denied necessary emergency care overlooks Idaho law. And as
explained above, even assuming abortions were required to “stabilize” emergency
conditions presented by some pregnant women, and that EMTALA required such
treatment, Idaho’s law would not prevent abortions in those circumstances.
17 Ultimately, given our conclusion that EMTALA does not preempt Idaho’s
law, the federal government has no discernable interest in regulating the internal
medical affairs of the State, and the public interest is best served by preserving the
force and effect of a duly enacted Idaho law during the pendency of this appeal.
Therefore, the balance of the equities and the public interest support a stay in this
case.
CONCLUSION
For the above reasons, the traditional stay factors favor granting the
Legislature’s motion. The Legislature’s motion for a stay pending appeal is
therefore GRANTED.