Courthouse Steps Decision: Moyle v. United States

Marco J. Lloyd:  Hello everyone and welcome to this Federalist Society virtual event. My name is Marco Lloyd and I'm an Assistant Director of Practice Groups with the Federalist Society. Today we're excited to host a Courthouse Step Decision on Moyle v. United States featuring Erin Hawley. Mrs. Hawley serves as Senior Counsel and Vice President of the Center for Life & Regulatory Practice at the Alliance Defending Freedom. Before joining ADF, Hawley practiced appellate law at several firms in Washington DC. She also worked at the Department of Justice serving as Counsel to Attorney General Michael Mukasey. 

Mrs Hawley has litigated extensively before the Supreme Court, as well as numerous federal appeals courts and state courts of last resort. She's also an Associate Professor of Law at the University of Missouri, a frequent commenter on legal issues in major media publications, and the author of "Living Beloved - Lessons From My Little Ones About The Heart of God." If you'd like to learn more about today's speaker, her full bio can be viewed on our website fedsoc.org.

After our speaker gives her remarks, we will turn to you, the audience, for questions. If you have a question at any point in today's program, please enter into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many as we can. Finally, I'll note that as always, the Federalist Society takes no position on particular legal or public policy issues and all expressions of opinion are those of the speaker. With that, Mrs. Hawley, thank you for joining us and the floor is yours.

Erin M. Hawley: Thank you so much for having me. A huge thank you to Marco as well as the Federal Society for sponsoring these forums to talk about some of the court's latest cases. Today I have the honor of talking about the EMTALA case. Alliance Defending Freedom was privileged to work alongside Attorney General Labrador and his team on this case. So with that disclaimer, I wanted to talk a little bit about what happened at the Supreme Court, a little bit about the history of the Emergency Medical Treatment and Labor Act, as well as some history of the litigation and then we'll parse the separate decisions or separate, I should say, opinions in this case despite the fact that it ended up in a DIG, we did get a number of opinions that show us where the justice's heads are at when they are looking at this issue. So at the outset, as many of you probably know, the EMTALA decision resulted in a bit of an unusual result.

The court in a per Curran order did what's called as "DIG" the case. They dismissed it as improvidently granted. And for those of you who are not court watchers, this is something the court is really loathed to do. Justice Jackson, in her separate opinion, actually calls it the Court "taking a mulligan." In recent years, in the last five or six years, the court has actually changed its internal procedures precisely to avoid these sorts of dismissals as improvidently granted. 

When the court or four justices think a decision merits review, then they re-list the case, giving the court's members and the clerks time to sort of kick the tires on a potential case and make sure there are not any procedural issues, vehicle issues that can prevent the court from issuing a decision on the merits. So all of that to say the court does not like to dismiss cases as improvidently granted, it looks like they took a case that they didn't need to or that they should not have, and yet the court did so in the Idaho and Moyle cases, so we'll talk about some reasons why they might have done so.

One thing to point out as well is sort of the unusual lineup in this dismissal. There were five justices in favor of "DIGing' the case. Those justices were Justice Barrett, Justice Kavanaugh, the Chief Justice, as well as Justices Kagan and Sotomayor. Justice Jackson wrote a separate dissent in which she said the Court should have decided the issue. In addition, justices Alito, Thomas, and Gorsuch thought the Court should have decided the issue. So a strange alignment there in addition to the unusual disposition of this case. So what happened?  What is EMTALA? What is this litigation about, and then what did the Court say? So first, what is EMTALA?

EMTALA, as I mentioned, is called the Emergency Medical Treatment and Labor Act, and this statute was a bipartisan piece of legislation passed with overwhelming numbers and signed by President Reagan. This statute has a very common sense purpose. It says that when hospitals take government money, when they take federal funds under Medicare, then they can't dump patients. When the statute was enacted, hospitals were doing things like checking to see whether you could pay before they admitted you to the emergency room. And this statute said you can't do that. 

If you are a recipient of federal funds and a person comes to the emergency room with a life-threatening or serious health condition, you have to first offer stabilizing treatment before sort of turning them out on the street. You can't turn them out on the street, you have to offer stabilizing treatment in certain circumstances. You can also transfer them to receive stabilizing treatment, but it required hospitals to treat people regardless of whether they could pay. So that's the purpose of EMTALA. Up until a couple of years ago, no one had ever suggested that EMTALA required abortions in violation of state law, but then the Dobbs decision came down, and then the Biden Administration instructed all of its agencies to figure out ways to make abortion as widely accessible as possible.

And that's when we get the Biden Administration's guidance on EMTALA. That guidance says again, for the very first time, that the Emergency Medical Treatment and Labor Act, or EMTALA, requires abortions to take place whenever there is a danger to a woman's health, and even if that abortion is in violation of state law. And then the Biden administration does something that's particularly aggressive, the Biden administration goes out and sues the state of Idaho. 

They sue the state of Idaho based on its Defense of Life Act, and in most circumstances, you would think that the federal government would want to argue that a state's abortion law does not apply to ectopic pregnancies. That's a pretty common-sense outcome. No state's law - abortion or pro-life law - in the country applies to ectopic pregnancies. There's no reason to think that Idaho's law would be any different. In fact, until very recently, and even after the Dobbs decision, Planned Parenthood admitted on its website that the treatment for an ectopic pregnancy is not an abortion.

Nevertheless, the Biden Administration took a very expansive view of Idaho's pro-life law. They told the district court that Idaho's pro-life law prohibited treatment for ectopic pregnancies. They also told the district court that it required that death be immediate and certain, and the district court granted an injunction against Idaho's law, based on those two premises. It found that Idaho prevented treatment for ectopic pregnancies and also required death to be certain. It found those provisions to conflict with EMTALA and thus enjoined Idaho's law. Subsequently, both the state court as well as the Idaho Legislature clarified what should have been obvious all along - ectopic pregnancies are not included within the definition of abortion. As well, the state Supreme Court in Idaho clarified that "certainty and immediacy" are not required. Instead, the doctor needs to reasonably believe that a woman's life is in danger. The case goes up to the Ninth Circuit, a panel of the Ninth Circuit stays the District Court's injunction, saying that the law should go into effect.

Meanwhile, the en banc court acting sua sponte reverses that stay. It says, "No, we're going to act and we are going to reinstate the District Court's stay". At that point in time, the state of Idaho petitions the Supreme Court for emergency relief, for a stay of that District Court order that's been put back in place, as well as certiorari before judgment. The Supreme Court at that juncture, I think it was on January 5th, issued a stay allowing Idaho's law to take effect and also granted certiorari before judgment. So that's sort of the state of play prior to the Supreme Court's decision. So here we have the Biden Administration coming in, suing a state saying that its pro-life law, permitted by Dobbs, is nevertheless preempted by a federal law. We have a District Court finding a conflict, and it goes up to the Supreme Court, the Supreme Court grants review, and that seems like something the Supreme Court would want to weigh in on.

So, what happened? How do we end up with the decision that we did? Justice Barrett's opinion is the most explanatory on this basis - again, it's joined by Justice Kavanaugh and the Chief Justice - and Justice Barrett explains that the contours of the litigation changed between when the District Court granted the injunction and when the Supreme Court issued its decision. Justice Barrett noted that the government had made both important and crucial concessions in the case. First of all, the government had clarified that EMTALA does not apply to mental health. Under the previous arguments made by the government, it would have been possible for a doctor in Idaho to perform an abortion in an emergency room based on mental health. 

The United States walked that back at oral arguments and in its briefs, it clarified that mental health was not an exception - a woman had to be in bodily harm, her bodily harm had to be in danger. In addition, the United States clarified that bodily harm needed to be eminent, that there was an immediacy requirement to that situation. And to quote the government, I want to make sure we get this, it requires an "acute emergency situation." So the government acknowledged that this would only apply in limited circumstances - much narrower than it had represented to the lower courts. And in addition - and this one particularly kind of gets me spun up - the government admitted that once the Supreme Court granted cert, that federal conscience protections apply to fully protect both hospitals as well as individual doctors. 

Now, this seems like a pretty common-sense result. We know that we have RFRA, we know that there are a number of federal conscience protections. We have the Snowe Amendments, we have the Church Amendments, we have the Hyde and Weldon amendments, a variety of protections that say in various terms that healthcare providers should not be forced to perform procedures contrary to their conscience. Many of them are abortion-specific, some are more broad. But the crazy thing about this case is that in a related case in Texas, under the very same provision, the EMTALA provision, the Biden DOJ had told the District Court, and I'm quoting here, that "There is no indication that federal conscience protections apply in an emergency situation." They wouldn't apply in situations covered by EMTALA. 

Then the Supreme Court grants cert and the Biden Administration switches its tune and clarifies that federal conscience protections do apply in emergency situations and would provide conscience protections against EMTALA's preemptive effect. So those two conscience protections as well as the "acute emergency" not based on mental health, really allowed at least those three members to conclude that the scope of the dispute had narrowed because of the government's concessions, and there was no need to intervene immediately. Justice Barrett clarifies that Idaho can enforce its law in nearly every circumstance. The court did put back in place the District Court's stay, but again, Justice Barrett's opinion clarifies that Idaho's law applies in all but perhaps a sliver of cases. We have a few more minutes here, so what about the rest of the opinions in the case? And then I want to say one last thing about Justice Barrett's opinion. 

So Justice Kagan and Justice Sotomayor agreed that the Supreme Court should not decide the case. They agreed to dismiss the case, but they argued that EMTALA does cover abortions, even if contrary to state law. Again, this would be a new interpretation of EMTALA. It had not been interpreted to require procedures barred by state law until Dobbs. Justice Alito sort of "takes the bull by the horns" and addresses this interpretation of EMTALA. He says that it's nonsensical for EMTALA to require abortions contrary to state law because the statute references unborn life at least four times.

In fact, the statute had been amended to clarify that not only a pregnant mother's life should be considered, but as well a hospital who takes federal funds has to treat unborn children, and make sure they are stabilized as well. So given that Justice Alito as well as Gorsuch and Thomas would have held that EMTALA does not preempt Idaho's law, Justice Jackson agrees that the Supreme Court should take the issue. She sort of casts against the court again and accuses the court of "taking a mulligan" instead of deciding the issue here, and really says that there was no reason to dismiss because the dispute still remained concrete. Justice Jackson also points out that there is a case waiting in the wings. Not only will the Ninth Circuit case continue, it will be sent back down to the Ninth Circuit. The Ninth Circuit prior to the Supreme Court’s grant of certiorari had scheduled the case for en banc review.

Presumably, that en banc review will take place at which point the case might go back up to the Supreme Court. In addition, as Justice Jackson identifies, there is a related case in the Fifth Circuit. The posture of this case is different in that Texas had sued the Biden administration based on the EMTALA guidance and argued that that guidance cannot preempt Texas's pro-life law. The Fifth Circuit agreed with Texas as well as some individual pro-life doctors and found that Texas's law is not preempted. 

The Department of Justice has petitioned for cert on that claim. So the justices will soon be faced with the question of whether they should grant cert in that case as well. That's one of the problems Justice Jackson identified with the Supreme Court punting the case. So what about the remaining issue I referenced in Justice Barrett's decision? She mentions in just a couple of sentences that there was one issue that had not been explored below - and I suspect this issue will end up being quite important as these two cases, the Ninth Circuit case and the Fifth Circuit case proceed through the lower courts - and that is the spending clause.

This is spending clause legislation. EMTALA was enacted expressly as a spending clause statute and as most of you know, spending clause statutes are in the nature of a contract. And that means that while Congress cannot commandeer states, they cannot require them to do things, it can- in certain circumstances and subject to certain limitations - induce them to do something. Now, as we learned from the first Obamacare case, this inducement can't be too much. You can't threaten to take away all of the state's funding in exchange for doing something that the government wants you to do. So it can't be overly coercive and it also has to be something that the state clearly signs onto.

And this is important. Spending clause statutes come with a clear notice requirement. So the EMTALA statute, in order for it to preempt Idaho's law, in order for it to preempt Texas's law, the court would need to find that it would need to, or excuse me, the statute clearly preempts that state law. Again, as Justice Alito lays out, given that the statute references unborn life a number of times, given that the statute has never been interpreted to require procedures contrary to state law, given that states have a historical interest in protecting the health and safety of their citizens, it's hard to see how EMTALA clearly requires abortions. In addition, there are a bunch of - for the legal nerds among us, I count myself as one of those - there are a lot of interesting spending clause questions that exist. One is whether the spending clause provides a cause of action at all.

So even the federal government has to have a cause of action to file suit under the Armstrong case. The court said that where a different mechanism applies, you can't file suit under the Supremacy Clause, the Supremacy Clause itself doesn't often provide a mechanism for filing a cause of action. So you've got the question, can the government even file suit, given that this is spending clause legislation? You've got the clear statement required by the spending clause legislation. And then there's these really interesting wrinkles and Justice Barrett's opinion cites to a brief filed by Christopher Mills. And Chris Mills' brief points out that it's sort of an odd proposition for spending clause statutes to be preemptive at all. And the reason spending clause statutes might not be preemptive, is again, because they're in the nature of a contract. So typically when a contract is breached, even a spending clause contract, then the state - at most - is subject to loss of federal funds.

It's not clear that the state would instead be subject to preemption of its own state law. And this is doubly true in circumstances like those found in EMTALA where it's not even the state that's signing onto these contracts, but it's private hospitals that agree to accept federal funds in exchange for agreeing not to turn away indigent patients who can't pay. So it would be an even sort of odder state of affairs for a private hospital to be able to bind a state in a way that state law should be or could be preempted. 

So for all of these reasons, I think that the Court will need to be assured and convinced - when and if the statute ultimately reaches the court again - that EMTALA clearly lays out an obligation on hospitals and doctors to perform abortions even when those abortions are contrary to state law. I don't think EMTALA can reasonably be read in that way to clearly require that, so I'm hopeful - again, biased here - as a small part of Idaho's team, but think that that clarity is not existing or does not exist, I should say in Idaho's statute. So that's a little bit about the case, where we've been, some issues that might come up in the future, and I'm happy to answer any of your questions about the various decisions that came along with the procuring order, dismissing the case or anything else.

Marco J. Lloyd: Great. Well, thank you so much for that fantastic overview. We'll now turn to audience questions. If you have a question, please enter into the Q&A function at the bottom of your screen, and to kick us off, what does this decision mean for abortion law in Idaho and in other states?

Erin M. Hawley: Absolutely. So I think the answer to that is very little. Justice Barrett takes the government - and her, I don't know that there's actually a controlling opinion because this is a dismissal - but I think lower court judges when they are looking at these series of decisions will see that Justice Barrett's opinion is probably what at least five members, probably six members of the Court would agree with, at least at a minimum, and so her opinion makes clear that Idaho's law can be enforced in nearly every circumstance. She basically says that the injunction issued by the District Court - even though the court puts it back in place - means very little. So it will have to be - to be honest, even the medical situations and complications raised by the Department of Justice in its brief, those complications can qualify under Idaho's laws. Certain things like severe preeclampsia, PPROM, sepsis, those sorts of things can be life-threatening situations. So it's hard to see, or hard to envision a circumstance in which Idaho's law would actually be preempted. And justice Barrett comes pretty close to saying that,

Marco J. Lloyd: Will other states look at this decision when they're potentially drafting abortion law?

Erin M. Hawley: They could, but again, I think the key points for everyone to focus on regardless of your views on abortion is that every state has an exception for an ectopic pregnancy and ectopic pregnancy treatment for that is not an abortion. It's a tragic circumstance in which the embryo is not viable. And again, as I mentioned up until a few months after Dobbs, Planned Parenthood's own website acknowledged that the treatment for an ectopic pregnancy is not an abortion at all. So those sorts of concerns really should be off the table. I know we've heard some sort of fear-mongering from doctors or others, but there's no debate. Ectopic pregnancies are treatable regardless of where you live.

The performance of that treatment is simply not an abortion. The other thing to recognize is that every state clearly has an exception for the life of the mother. That means if a mother, there are certain circumstances, they're rare and they're tragic, but in which cases, continuing the pregnancy might jeopardize the woman's health. And in those limited circumstances, even pro-life doctors will perform this procedure, and the key distinction is this procedure - they refer to it as a separation - and the goal here is to do their best to save both the mother and the unborn child. Sometimes that's not possible, but every state allows those sorts of procedures to save the mother's life. So again, I think that the sort of conflict that we're seeing here is pretty narrow, especially after the government's concessions in this case.

Marco J. Lloyd: Along those lines, Michael Weiser asks, "If a physician has a professional medical opinion that goes against the mandates of EMTALA, would that be a defense for the physician?" And I assume by the phrasing "medical opinion" he means as opposed to moral or religious opinion.

Erin M. Hawley: So that's a good question. I think it would depend on the circumstances. Some conscience aws in the past have included moral exceptions. I don't think I could be wrong, but I don't think the federal conscience protections, especially the one that would probably apply here, the Church Amendment - I don't think it encompasses moral exceptions or medical decisions. But I guess there's a couple of issues I should say. So one, the Idaho Supreme Court clarified that it's up to a doctor's subjective judgment as to how necessary a treatment is going to be. So the Idaho Attorney General is not going to come in and second guess the doctor's decision so long as it was reasonable. Now, on the other hand, if a doctor thinks that a procedure is not necessary, that's probably not going to be second-guessed either. Again, the government clarified that under EMTALA, they're only looking at "acute emergency" circumstances. And then to go into more detail, the federal conscience protections apply based on religious exemptions, the moral question would be a more difficult one for sure.

Marco J. Lloyd: So, you mentioned some accusing the Supreme Court of punting or "taking a mulligan" on the abortion issue, and for this -

Erin M. Hawley: So that was Justice Jackson, not me.

Marco J. Lloyd: Okay, as some have said. And then also pulling into the conversation FDA v. AHM, do you think it's a fair characterization of the court as punting on the abortion issue post-Dobbs?

Erin M. Hawley: So I certainly think it's true. They didn't decide on either of the abortion cases this term. So the FDA case that's referenced in the question, the Supreme Court dismissed that based on standing, they didn't address the merits of whether the FDA had acted lawfully when it had removed various safeguards from the abortion drug mifepristone. Every court to look at the merits issue had concluded that the FDA did act unlawfully - that it violated the Administrative Procedure Act - when it removed those safeguards and allowed for the mailing of abortion drugs without a woman ever seeing a doctor. And so that means she can't get screened for ectopic pregnancy. It means a doctor can't accurately assess gestational age. So again, the court dismissed that on standing, didn't decide that, with the EMTALA case, they dismissed it as improvidently granted - wanting the lower courts I think to have the first bite at the apple - and to wait until then.

So I think it's certainly true that in both of those instances you can see the court’s actions as delaying a decision. In the FDA case, for example, there are three states that intervene below. The court rejected the Solicitor General's argument that no one could sue. The FDA actually made the argument that no one can challenge its removal of safeguards, and the court in a line said, "We disagree that no one can challenge." So presumably that challenge will move forward, brought by the states. And so we may see the FDA case again. Likewise, I think between the Texas case and the Ninth Circuit case it is quite likely the court will see the EMTALA question again ahead.

Marco J. Lloyd: Still, between these two decisions, many pro-lifers are frustrated with the Court, especially with some of the conservative justices. Is this frustration warranted or are the justices doing the best and the correct thing with the cases they've been given?

Erin M. Hawley: So I absolutely think the justices are doing the best they can to the best of their ability. So I think they're all persons of integrity, and meeting the cases on those grounds. Do I wish they would've decided both of these cases? Absolutely. The standing question in FDA is tough. We were representing pro-life doctors who were non-regulated parties. And as the court has pointed out, that means that it can be more difficult to establish standing. But on the other hand, it's a really scary proposition to say that no one can challenge an agency regulation that impacts about 650,000 women per day and removes safeguards from a high-risk drug. So I definitely wish the court would have reached both of those cases, but again, I think that those questions will likely come back to the court in the future.

Marco J. Lloyd: Great. Thank you so much, and as a reminder for our audience, we are happy to take your questions, so feel free to enter them at the Q&A function at the bottom of your Zoom window. So this is not the last time an abortion case will come to the Supreme Court, as you've referenced. What does this case and its numerous opinions, tell us about how the court may treat this issue going forward?

Erin M. Hawley: Sure. So I think there are a lot of clues. I think that the Supreme Court will certainly hold the government to its concessions. And again, those concessions are quite important as Justice Barrett points out. So the court clarified that EMTALA would not require abortions based on mental health. It clarified that EMTALA would only apply based on "acute emergency" situations, and it also clarified that both hospitals and individuals were entitled to federal conscience protections. 

So if at some point in time the Biden Administration or a subsequent administration tries to walk back those concessions or protections, I would expect the Supreme Court to step in pretty swiftly on those basis. In addition, if you look at Justice Alito's decision, it's clear that three justices think this statutory question is pretty straightforward. You can look at sort of the history and context of the statute. Its purpose is patient dumping.

It says nothing about abortion, its text four times mentions unborn children, and at a very minimum, you cannot say that it clearly requires abortions in violation of state law because of those spending clause concerns that I referenced. And again, I think that there are a whole host of spending clause issues with the government's use of EMTALA in this case. But at a very minimum, even if the court gets only to the most sort of superficial of those reasons, it's a black letter law that as a contractual condition, when the federal government is binding the states to do something under its spending clause power, it must state that condition clearly. Here, the state of Idaho, the state of Texas, any other state, was not on clear notice that it would be required to allow abortions contrary to state law by accepting those federal funds. So I think that clear statement really helps there.

Marco J. Lloyd: And Aaron Marzino asked, "Were you surprised by the concessions made by the Solicitor General?"

Erin M. Hawley: A little bit. I think they are very different from how the federal government has litigated EMTALA,as well as the FDA case in the lower courts. They seem calculated to get the results that they did in both of those cases. Again, if you look at the FDA case, the main reason that the court said that plaintiffs didn't have standing was because the Church Amendments apply. The federal government conceded the Church Amendments apply in emergency situations, they apply to both doctors and hospitals. They apply regardless of where that hospital is located, even if it is in a healthcare desert. So it was probably the most definitive statement, the most robust statement of federal conscious protections made by the court to date. 

The same thing of course happened in the EMTALA case with these concessions. So it seems like a way to sort of get the Supreme Court to either not decide the issue or else to decide the issue in a narrow way. And this is, I think a tactic we are seeing more broadly across the administration. For example, if you look at the Biden Administration and the 1557 rule, that rule includes conscience protection. Now they're not absolute. Sometimes you have to go through sort of an assurance process, but including these conscience protections, it's a really good thing. We want our pro-life doctors to be protected. But it might also be a way, as I think we've seen in these lawsuits to try to evade review of the underlying merits of the decisions.

Marco J. Lloyd: And do you imagine that strategy will continue going forwards on behalf of the Biden Administration?

Erin M. Hawley: No, I think it certainly could. We clearly saw, if you listen to oral argument in the AHM case, the FDA case, I think Justice Kavanaugh only asked one question and it was about whether the federal conscience protections apply and Solicitor General Elizabeth Prelogar said yes. And so it's clear that these conscious protections are rightly a concern of the justices. They are going to protect religious liberty, which is a good thing. But that probably does result in administrative rules as we see in 1557, maybe carving out these conscience exceptions again, a really good thing, but maybe in an effort to minimize review of the underlying decisions.

Marco J. Lloyd: Are there areas other than conscious protections where the justices seem particularly active on the life issue?

Erin M. Hawley: So I think conscious protections have been the most robust in the last couple of terms that the court has been very strong on religious liberty. If you think about the cases from the Coach Kennedy case, which was more of a speech case, to EMTALA, to its really robust and ringing endorsement of conscious protections in AHM, the court has been clear that it finds conscious protections valuable, but even more importantly, to be protected by the text of the Constitution. This is a bit far-field, but if we're thinking about other areas in which the court is robustly protecting Americans and the separation of powers principles, I think that's probably administrative law. We saw that in a variety of cases this term from the overturning of Chevron to the Horr Post decision.

Marco J. Lloyd: And any that might specifically weigh in on the abortion issue, should a case come back to the Supreme Court, or is it kind of in those realms?

Erin M. Hawley: That's a great question. The Chevron decision, which was Loper Bright, and that decision of course overturned the longstanding Chevron doctrine, which required deference to agency interpretations that were merely permissible. And you can foresee a number of contexts in which that could be important to the abortion debate. One of them that immediately comes to mind is Title X. So the Biden administration has interpreted Title X, which provides family planning funding to localities and states to require referrals for abortion. Oklahoma and other states lost their funding. They filed suit saying that this violates the plain text of Title X, and in these sorts of cases, the agency's not going to get deference. The federal courts are going to interpret them in the first instance, and I think the states have by far the stronger argument in the Title X cases because that statute says that family planning funds shall not be dispensed to an entity where abortion is a method of family planning. 

So to me, Title X goes completely the opposite way. It says you're not supposed to get funds if you do abortions, and yet the Biden administration is saying you can't get funds unless you refer for them. So the 1557 rule can come into effect - both with abortion as well as with gender ideology - so I think the administrations have frequently used statutes to advance a more extreme agenda than has Congress. And so that will help all over the field, but certainly in the abortion context.

Marco J. Lloyd: On that note, you mentioned cases pending in the Ninth and Fifth Circuits regarding EMTALA. Are there any other cases coming down the pipe that people should keep an eye on in the abortion realm?

Erin M. Hawley: To be sure. So if we're talking about sort of what's going on post-Dobbs, there are a couple of different buckets. One of those buckets is challenges to state pro-life laws on rational basis review. Another bucket is a challenge to state pro-life laws on state grounds. And then one of - I think the most interesting buckets - and I would encourage the listeners to pay attention to is an issue that was raised by Justice Alito in the AHM argument, he asked counsel for Danco, which manufactures the brand name drug Mifeprex, whether they had taken a position on preemption. And what he was referring to is a case pending in the Fourth Circuit. And in that case, the generic manufacturer GenBioPro filed suit against West Virginia. It said its entire pro-life law was preempted based merely on the FDA's approval of mifepristone, so it's sort of almost the inverse of the FDA case.

You have the drug manufacturer going into court and saying states can have nothing to do with regulating this drug because the FDA approved it. There are all sorts of contrary reasons, reasons to think that GenBioPro should not prevail. First of all, there's a presumption against preemption. Second, states have historically had the authority to regulate for health and safety. And third, when you look at the statute that GenBioPro references, that statute indicates that the FDA's regulation set a floor upon which states can build. The same thing is true of opioids. Opioids are in the same category of drugs as mifepristone. They're both high-risk drugs. And GenBioPro's argument would mean that states can't regulate opioids either - they can't impose restrictions on how many days a patient can be given opioids and those sorts of things. So hopefully the Fourth Circuit will come out the right way on that case, but if it doesn't, I could see the Supreme Court stepping in there as well.

Marco J. Lloyd: Great. Well, there's certainly a lot to keep an eye on. On that note, are there any final or closing thoughts you would like to make?

Erin M. Hawley: So I think one thing to note is while I'm disappointed with the ultimate disposition in this case with the dismissal of improvidently granted, there is a lot to like in Justice Barrett's opinion, and there's certainly a lot to like in Justice Alito's opinion. Justice Barrett clarifies again that the Idaho law can be enforced in nearly every circumstance as she really focuses on the government's concessions. 

In this case, it only applies to a physical health circumstance or situation. It only applies in an acute medical situation if the child is far enough along - the unborn child is far enough along - the government even conceded that EMTALA requires delivery, rather than an abortion. So some key concessions here, in addition to the really big one about the conscience protections, and again, the federal government argued the very opposite down below in the District Court in Texas. So some key concessions here from the federal government. Justice Barrett really takes the government at its word and really signals that by and large Idaho should be able to enforce its law. The same thing should be true for every state pro-life law around the country.

Marco J. Lloyd: Fantastic. Well, thank you so much. On behalf of the Federalist Society, I want to thank Erin Hawley for the benefit of her extensive expertise today. Thank you also to the audience for joining us. We greatly appreciate your participation and please check out our website, fedsoc.org or follow us on all major social media platforms at @fedsoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in and we are adjourned.