DOJ Attacks Pro-Life States With Bogus ‘Preemption’ Argument

The Biden administration is using a spurious legal argument to crack down on states limiting abortion.

On Aug. 2, the U.S. Department of Justice filed suit against the state of Idaho, hoping to undermine its new law prohibiting most abortions by claiming that it conflicts with a federal law regarding medical treatment in hospital emergency rooms.

This is just one of several new strategies by abortion advocates to interfere with the American people’s authority to regulate abortion.

Not only is this evidence that the Justice Department is now just a part of President Joe Biden’s political apparatus, but DOJ’s argument here is bogus.

The Constitution

Article VI of the Constitution provides that the Constitution, federal laws, and treaties “shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This provision is referred to as the supremacy clause and essentially means that federal law takes priority over state law when the two conflict. It also includes regulations by federal executive branch agencies.

The federal and state governments, however, often legislate on similar subjects or in similar policy areas. When does that very general overlap become a conflict that requires federal preemption? The answer starts off general.

Gary Lawson, a professor at the Boston University School of Law, wrote that “preemption occurs whenever it is intended by Congress.”

Congress can express this intention explicitly, as in the text of a statute, by demonstrating its intention to occupy an entire field of regulation, or when a genuine conflict between federal and state statutes occurs.

The Statutes

The Emergency Medical Treatment and Labor Act, enacted in 1986, covers hospitals that have “entered into a provider agreement” as part of the Medicare program.

If a hospital in this category has an emergency department, the law requires “an appropriate medical screening examination” for “any individual” who requests it, “to determine whether or not an emergency medical condition” exists.

If the answer is yes, ignoring the individual’s ability to pay, the hospital must either “stabilize the medical condition” or, following the statute’s rules, transfer the individual to another facility.

The law expressly states that it preempts state laws “to the extent that the requirement directly conflicts with a requirement of [the Emergency Medical Treatment and Labor Act].” Or, conversely, the act does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of [the Emergency Medical Treatment and Labor Act].”

In 2020, Idaho enacted a statute that would ban all abortions except those “necessary to prevent the death of the pregnant woman” and in cases of rape or incest. This law is scheduled to go into effect on Aug. 25, 30 days after the judgment was issued in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and Planned Parenthood v. Casey.

By holding that the Constitution does not protect the right to abortion, Dobbs met the Idaho law’s requirement of “restor[ing] to the states their authority to prohibit abortion.”

The DOJ Lawsuit

The Justice Department claims that these two statutes are in direct conflict because the Idaho law would prohibit an abortion even if an emergency room doctor believed an abortion was necessary to stabilize an individual with an emergency medical condition.

The complaint asks a federal judge to declare the Idaho law, and any attempt to enforce it, invalid “to the extent that it conflicts with [the Emergency Medical Treatment and Labor Act].”

It is possible to imagine, as the DOJ lawsuit describes, a situation in which, taken together, the Emergency Medical Treatment and Labor Act and the Idaho law create a dilemma for emergency room doctors. But is this dilemma an actual conflict between the statutes?

A few considerations point toward a negative answer to that question.

The Supreme Court, for example, has held that when areas of traditional state concern are involved, the presumption is against federal preemption. These areas include what is often called the states’ “police power” over matters such as public health, including regulation of the medical profession. This would obviously include prohibiting physicians in the state from performing most abortions.

Second, the Emergency Medical Treatment and Labor Act does not regulate abortion and the Idaho law does not regulate emergency room care or any aspect of the Medicare program.

In fact, the Emergency Medical Treatment and Labor Act does not contain a single use of words such as “abortion” or “pregnancy.” Instead, it sets conditions for hospitals that receive federal Medicare funds.

Therefore, the so-called conflict, if it can even be called that, is not created by the interaction of the federal and state statutes involved here. It is created by the hospital’s choice to participate in the Medicare program.

A hospital should not be able to accept Medicare dollars and then claim that its doctors need not comply with a state law prohibiting most abortions.

The DOJ lawsuit does not even suggest that Congress had any intention to displace state abortion laws when it enacted the Emergency Medical Treatment and Labor Act. The act imposes its Medicare-funding rule on hospitals, the Idaho law applies to doctors.

Ed Whelan, a distinguished senior fellow at the Ethics and Public Policy Center, points out another problem. The Emergency Medical Treatment and Labor Act and Medicare are part of the Social Security Act, which does not allow any federal official “to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.”

In other words, this is not even a valid preemption case, let alone a convincing argument, that a direct statutory conflict exists that requires preemption to resolve.

DOJ offers nothing more than a hypothetical dilemma for some doctors created by their employing hospitals’ decision to accept federal subsidies. DOJ could file this bogus lawsuit against any state that bans any abortions, simply filling in blanks for the name of the state and a few particulars about its relevant law.

On the merits, these lawsuits will likely fail, leaving in their wake an even more damaged reputation for DOJ and another talking point for Biden to claim he is doing “everything he can” to facilitate abortions. 

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