03.29.24

Cantwell & Colleagues File Amicus Brief Urging SCOTUS to Affirm that Law Requires Hospitals to Provide Emergency Abortions

Amicus brief was filed in response to Idaho’s extreme abortion ban, which the Senators believe violates EMTALA law; “Chilling effect” felt by providers: 55% of maternal-fetal medicine specialists have left Idaho since ban went into effect, and three rural hospitals have shut down maternity services altogether

WASHINGTON, D.C. — Today, U.S. Senator Maria Cantwell joined 257 of her House and Senate colleagues in submitting an amicus brief to the U.S. Supreme Court in Moyle v. United States and Idaho v. United States, two consolidated cases concerning the Emergency Medical Treatment and Active Labor Act (EMTALA) that the Supreme Court will hear this April.

EMTALA is a federal law that requires hospitals that receive Medicare funding to provide necessary “stabilizing treatment” to patients experiencing medical emergencies, which can include abortion care.

After the Dobbs decision in 2022, an extreme abortion ban in Idaho went into effect that makes it a felony for a doctor to terminate a patient’s pregnancy unless it is “necessary” to prevent the patient’s death. The United States sued the State of Idaho, arguing that the state’s law is preempted by EMTALA in those circumstances in which abortion may not be necessary to prevent imminent death, but still constitutes the necessary stabilizing treatment for a patient’s emergency medical condition. The district court agreed; it held that in those limited, but critically important situations, EMTALA requires Medicare-participating hospitals to provide abortion as an emergency medical treatment.

In their brief in support of the Justice Department, the lawmakers ask the Supreme Court to uphold the district court’s ruling. They argue that the congressional intent, text, and history of EMTALA make clear that covered hospitals must provide abortion care when it is the necessary stabilizing treatment for a patient’s emergency medical condition, and that EMTALA preempts Idaho’s abortion ban in emergency situations that present a serious threat to a patient’s health.

“Respecting the supremacy of federal law is about more than just protecting our system of government; it is about protecting people’s lives. 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. And health care providers, forced to let Idaho’s abortion law take precedence over their medical judgment about their patients’ best interests, will continue their exile from Idaho, creating maternity-care ‘deserts’ all over the state,” the Members wrote in their amicus brief. The Members pointed to numerous reports of OB/GYNs leaving Idaho en masse since the state’s abortion ban went into effect—Idaho has since lost fifty-five percent of its maternal-fetal medicine specialists and three rural hospitals have shut down maternity services altogether.

“These are not hypothetical scenarios. Because Idaho’s abortion ban contains no clear exceptions for the ‘emergency medical conditions’ covered by EMTALA, physicians are forced to wait until their patients are on the verge of death before providing abortion care. The result in other states with similar laws has been ‘significant maternal morbidity,’” wrote the Members, pointing to harrowing reports of pregnant women with severe health complications being denied necessary abortion care. “Federal law does not allow Idaho to endanger the lives of its residents in this way.”

In the Senate, Sen. Cantwell joined 48 U.S. Senators in signing the amicus brief: Schumer (D-NY), Murray (D-WA), Wyden (D-OR), Durbin (D-IL), Sanders (I-VT), Blumenthal (D-CT), Baldwin (D-WI), Bennet (D-CO), Booker (D-NJ), Brown (D-OH), Butler (D-CA), Cardin (D-MD), Carper (D-DE), Casey Jr. (D-PA), Coons (D-DE), Cortez Masto (D-NV), Duckworth (D-IL), Fetterman (D-PA), Gillibrand (D-NY), Hassan (D-NH), Heinrich (D-NM), Hickenlooper (D-CO), Hirono (D-HI), Kaine (D-VA), Kelly (D-AZ), King (D-ME), Klobuchar (D-MN), Luján (D-NM), Markey (D-MA), Menendez (D-NJ), Merkley (D-OR), Murphy (D-CT), Padilla (D-CA), Peters (D-MI), Reed (D-RI), Rosen (D-NV), Schatz (D-HI), Shaheen (D-NH), Sinema (I-AZ), Smith (D-MN), Stabenow (D-MI), Tester (D-MT), Van Hollen (D-MD), Warner (D-VA), Warnock (D-GA), Warren (D-MA), Welch (D-VT), and Whitehouse (D-RI).

In the House, the brief was signed by 209 U.S. Representatives.

The full amicus brief is available HERE.

Ahead of the of the 51st anniversary of the since-reversed U.S. Supreme Court decision in Roe v. Wade, in January Sen. Cantwell released a snapshot on the status of abortion providers and patients in the State of Washington since the Dobbs decision. The snapshot revealed a strained reproductive care delivery system in the State of Washington, with the number of abortions rising by 23% in 2022 and abortions for out-of-state patients surging by 46%, even as clinics struggle with staffing and harassment.

Currently, 21 states have total abortion bans or stringent restrictions in place, and in 2023, over 1,000 provisions to impose further limits on reproductive health care or roll back reproductive rights were introduced across the country.

Since a leaked draft opinion indicated the Supreme Court’s intent to overturn the reproductive care precedent established under Roe, Sen. Cantwell has been focused on protecting abortion access and choice for women across the country. In March 2023, Sen. Cantwell joined U.S. Senator Patty Murray (D-WA) in reintroducing the Women’s Health Protection Act and hosting a roundtable discussion on the path forward to defend Americans’ reproductive rights.

In April, Sen. Cantwell joined Sen. Murray and 25 other colleagues in reintroducing the Let Doctors Provide Reproductive Health Care Act, which would ban anti-choice states from restricting or preventing health care providers from performing abortions in states where abortion is legal.

In May, Sen. Cantwell joined 12 Senate colleagues in reintroducing the My Body, My Data Act to protect personal reproductive health data.

Also in May, Sen. Cantwell joined 29 Senate colleagues to introduce the Protecting Service Members and Military Families’ Access to Health Care Act, legislation that would codify the Department of Defense’s policy to help service members and their families access non-covered reproductive health care – including abortion services – regardless of the state in which they are stationed.

In June, Sen. Cantwell joined colleagues in reintroducing the Right to Contraception Act to codify the right to contraception access established by the Supreme Court ruling Griswold v. Connecticut in 1965. The same month, Sen. Cantwell cosponsored the Freedom to Travel for Health Care Act to ban anti-choice states from penalizing or prosecuting health care providers that offer reproductive services in states where abortion care is legal.

In July, Sen. Cantwell joined 46 colleagues in writing to Secretary Becerra to urge HHS to adopt stronger privacy regulations for Americans’ protected health information, including a warrant requirement for the release of medical records in the reviewed Health Insurance Portability and Accountability Act (HIPAA) privacy rule regulation.  These protections are particularly important because 19 Republican attorneys general – including Idaho’s Raúl Labrador – sent a public comment to Secretary Becerra strongly opposing the Department of Health and Human Services’ revised HIPAA protections. If successful, their opposition would make it easier for officials in Idaho to investigate abortions performed in Washington state and prosecute patients and providers.  This is alarming in light of the findings in Sen. Cantwell’s snapshot report showing substantial and continuing increases in out-of-state abortion patients in Washington.

In December, Sen. Cantwell joined a resolution expressing support for the abortion medication mifepristone and calling for the Food and Drug Administration’s approval of the drug to be respected. The resolution followed a U.S. Supreme Court announcement it would review a lower court ruling that would restrict access to mifepristone nationwide -- including in states like Washington that have expressly codified the right to an abortion into law.  The Court heard arguments in that case earlier this week.  In January, Sen. Cantwell joined 263 Members of Congress in filing an amicus brief with the Supreme Court in that case, urging the reversal of a lower court ruling that would restrict access to mifepristone.  Sen. Cantwell has been actively tracking the litigation, which has significant ramifications for access to this medication, and joined colleagues to file amicus briefs at multiple stages in the litigation.