Preemption Via the Spending Power in the Idaho Abortion Case

As John Oliver says (accurately) at the top of each episode of Last Week Tonight, it has been a busy week. Indeed, last week was so busy with campus protests and Trump's immunity case, that despite writing a Verdict column and three blog posts (here, here, and here), I did not have an opportunity to discuss any developments in Trump's NY hush-money trial, the Harvey Weinstein ruling of the NY Court of Appeals, or Wednesday's SCOTUS oral argument in the Idaho abortion case.

Today I begin to try to catch up. I expect to have something to say about the hush-money trial and the Weinstein ruling at some point. Today's essay is part 1 of my discussion of the Idaho case, focusing on the question of Congress's  authority to preempt state law via the Spending power. Part 2, which will come later this week, will analyze Justice Alito's suggestion that because the statute at issue in the Idaho case--the Emergency Medical Treatment and Active Labor Act (EMTALA)--uses the phrase "unborn child," it would be contrary to Congress's intent to construe it to require covered entities to make abortion an available medical option.

The core issue in the Idaho case is how to read EMTALA's requirement that hospitals that participate in Medicare and have emergency rooms provide stabilizing medical care to any patient who comes to the ER with an emergency medical condition or (under limited circumstances) transfer that patient to another facility for appropriate care. The United States argues that EMTALA requires doctors to apply their best medical judgment in deciding what care is necessary, which will sometimes mean making abortion an available option. Idaho argues that EMTALA leaves in place a background principle that the medical standard of care is a question of state law and therefore cannot require care forbidden by Idaho law, which permits abortion only to prevent the pregnant person's death, in some instances of pregnancy caused by rape or incest, and to end a molar or ectopic pregnancy. On its face, the Idaho abortion law does not permit abortions that medical professionals would deem necessary for other health reasons--such as to prevent non-life-threatening kidney failure or loss of future fertility.

The oral argument got sidetracked on a number of issues. Joshua Turner, arguing for Idaho, contended that even if EMTALA does impose a federal standard of care, that standard would not require any emergency abortions that Idaho law forbids. U.S. Solicitor General Elizabeth Prelogar pushed back, citing the Idaho law's text and an Idaho Supreme Court opinion. If Mr. Turner is correct, there's nothing to argue about, which is a double-edged sword: the U.S. has no complaint with Idaho (at least not under EMTALA), but at the same time, Idaho is not harmed by an injunction to comply with EMTALA. Hence, I'll assume there is a real dispute here, i.e., that Idaho law forbids some emergency abortions that in the reasonable medical judgment of doctors, are necessary to avert substantial health risks and therefore that EMTALA requires be made available in Idaho hospital ERs.

Another preliminary obstacle was raised by Justice Gorsuch. Why, he wanted to know, was the United States suing for an injunction rather than imposing fines, cutting off funding, or waiting for a patient who is denied care under EMTALA to sue for damages? That was a remarkable question. As SG Prelogar said in response, longstanding and hitherto unquestioned precedent has recognized the sovereign interest of the United States to sue states for injunctive relief to enforce the supremacy of federal law. Given the recent willingness of SCOTUS to abandon longstanding precedent, it's not beyond the realm of possibility that the Court would eliminate a basic tool for the enforcement of federal law, but because only Justice Gorsuch raised the issue in this case, I'll assume that it won't be the basis for a ruling.

To similar effect, Justice Thomas opened the questioning of SG Prelogar by asking whether there were any prior cases in which a statute enacted pursuant to Congress's Spending Power had been held to preempt a state's criminal law. The SG said she couldn't think of any but pointed to citations in the government's brief (at page 46) of five Supreme Court cases in which federal laws enacted pursuant to the Spending Power had preempted state law. I looked at each of these cases and confirmed the suspicion of Justice Thomas that none of them involved a state criminal law. However, as the SG stated, the Court had never suggested that federal preemption is somehow weaker when a state law inconsistent with federal law imposes criminal rather than civil penalties. And there's no reason why it would be. Federal law, if a valid exercise of an affirmative power and not violative of any other constitutional principle, preempts all contrary state law--whether embodied in a state statute, regulation, common law doctrine, or constitutional provision, and whether civil or criminal.

Justice Alito's variation on this theme had more to it, however. In answering Justice Thomas, SG Prelogar said precedents establish that Congress may use the Spending Clause power to preempt state law, even when the recipients of the federal funds are private parties rather than the state itself. Justice Alito wanted to know what the "theory" behind those cases is. His skepticism might be unpacked as an affirmative argument against this kind of preemption as follows:

When Congress imposes obligations on or limits the freedom of states via the Spending Clause, it does so through an essentially contractual agreement. That's why cases like South Dakota v. Dole require that for conditional spending to be valid, the conditions must be clear. If a state is going to give up its power to set the minimum drinking age (as in Dole) or to forbid certain categories of abortion (as in the Idaho case), it must be placed on notice. But when non-state parties such as the hospitals in the Idaho case accept Medicare funding, the state is not agreeing to anything. Thus, the hospitals should not be able to agree on the state's behalf to the preemption of Idaho's abortion prohibitions.

Is that a good argument? The government's brief (also at page 46) argues that Spending Clause legislation isn't really contractual, citing case law, but I'm not fully persuaded that this answers the strongest form of Justice Alito's argument. Dole and the Medicaid expansion/Spending Clause portion of NFIB v. Sibelius do seem to be premised on the notion that states are bound because of their voluntary undertakings. Thus, it seems to me, Justice Alito may have a point.

I can illustrate that point with a hypothetical example based on Dole. Suppose Congress, perhaps in response to lobbying from the liquor industry, wishes to set a national minimum age of 18 to purchase alcohol and to preempt stricter state age laws. However, many states wish to retain their 21-year minimum. Should Congress be able to circumvent the states by subsidizing liquor sales with conditions? That is, imagine a federal law that attaches conditions to a liquor retailer's receipt of federal liquor subsidy funds, including a prohibition on denying sales to anyone over 18 simply on account of age. Would we really want to say that the liquor retailers' acceptance of the federal funding overrides the state's choice when the state did not consent to, indeed presumably opposed, the conditions? I think the answer is pretty plainly no. In other words, Justice Alito is right that there isn't a sound theoretical basis for preemption via conditional spending when the funds don't go to the state.

However, even assuming the Court should re-examine whether Spending Clause legislation involving disbursements to non-state actors may have preemptive force, there is no occasion to do so in the Idaho EMTALA case. That's because Congress doesn't need Idaho's permission to preempt its abortion law. As the SG's brief notes, when the Court in Dobbs returned abortion regulation to the People's representatives, it allowed Congress as well as the states to regulate abortion. Of course, Congress needs an affirmative power to do so, but because the provision of abortion and other medical services is pretty clearly "economic activity" within the meaning of the relevant precedents, the Commerce Clause provides that affirmative power. The SG's brief makes this point, albeit far too subtly for my taste, by quoting Gonzales v. Oregon for the proposition "'that the Federal Government can set uniform national standards' on matters of 'health and safety,' including 'medical practice.'" The key is that the federal statute at issue in that case (the Controlled Substances Act) was validly enacted pursuant to the Commerce Clause.

To put the point directly as a response to Justice Alito and my hypothetical liquor subsidy law, the reason why states must agree to Spending Clause conditions in a case like Dole is that Congress lacks the power to impose the conditions directly. In Dole, the Court assumed (without deciding) that Section Two of the Twenty-First Amendment would forbid direct Congressional regulation of alcohol sales and consumption. Thus, if there were no valid voluntary undertaking by the state in exchange for federal funds, there would be no valid basis for the federal conditions in the first place. But where, as with EMTALA, Congress could adopt the regulation directly via the Commerce Clause, the state's agreement or acquiescence in exchange for federal funds is not necessary.

Perhaps you are wondering whether it's a problem that by imposing obligations conditioned on funding, EMTALA invokes only the Spending power and not the Commerce Clause power. If so, wonder no more. That's not a problem. Quoting a 1948 case, the Court said this in NFIB (in the portion of the decision upholding the individual mandate as an exercise of the Taxing power): "The 'question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.'" Congress acting via the Commerce Clause could have mandated that all hospitals with emergency rooms offer stabilizing care including abortions where medically appropriate. That it chose to impose the condition only on those hospitals that accept Medicare (which is nearly all hospitals anyway) does not render EMTALA any less valid as an exercise of the Commerce Clause power.

Thus, the validity of EMTALA's conditions pursuant to the Commerce Clause renders Justice Alito's question about the theory underlying preemption through acceptance of federal funds via non-state entities irrelevant to the case now before the Court. Fair is fair, though, and while I'm often harshly critical of Justice Alito, I give him credit here for noticing an interesting, albeit for now hypothetical, issue.