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The U.S. Fifth Circuit Court of Appeals Is Poised to Address Emergency Abortions and the Scope of EMTALA’s Preemption of State Abortion Laws

Steven G. Pine, gina L. Bertolini, with K&L Gates:

Shortly after the Dobbs decision, HHS laid out its position in a 11 July 2022 memorandum issued to state survey directors (the EMTALA memo) that asserted, among other things, that state laws purporting to limit abortion services more narrowly than provided under EMTALA are preempted.

Three days after HHS issued the EMTALA memo, the Texas Attorney General (AG) filed a federal complaint in the Texas District Court seeking a declaratory judgment that HHS had acted beyond its authority in issuing the EMTALA memo, as well as an injunction seeking to prevent enforcement of the EMTALA memo. … [T]he Texas District Court granted Texas’ request for an injunction, in part, in a preliminary order issued 23 August 2022. …

The outcome of this appeal could significantly impact how hospitals, health systems, and other providers deliver emergency abortion care across the country. HHS continues to stand behind the EMTALA memo, which has only been enjoined in the state of Texas to date, stating that it would investigate reports or complaints regarding an EMTALA violation and “will not hesitate” to refer states attempting to prohibit providers from offering emergency care consistent with EMTALA to the DOJ “to take appropriate legal action.”

I anticipate the Fifth Circuit will affirm the District Court, but other appellate courts will reach different conclusions. Ultimately it will be up to the U.S. Supreme Court to settle the scope of EMTALA preemption. Again, I think they will find there is no direct conflict between EMTALA and state law, and thus, no preemption.