[00:00:22] Speaker 08:
The United States Court of Appeals for the Ninth Circuit is now in session.

[00:00:26] Speaker 08:
Please be seated.

[00:00:34] Speaker 02:
Good afternoon.

[00:00:35] Speaker 02:
Welcome to the Chamber's courthouse here in Pasadena.

[00:00:40] Speaker 02:
It's a pleasure to be here with my colleagues.

[00:00:42] Speaker 02:
This is the time set for the case

[00:01:16] Speaker 15:
I'm dividing my time evenly with counsel for the legislature, and I will attempt to reserve three minutes for rebuttal.

[00:01:22] Speaker 15:
May it please the court.

[00:01:23] Speaker 15:
I will press three points today.

[00:01:25] Speaker 15:
First, the federal government cannot preempt state law by paying private parties to violate it.

[00:01:32] Speaker 15:
Second, the United States lacks a cause of action here, where Mtolov authorizes equitable relief only four

[00:01:41] Speaker 15:
to Medicare hospitals, not non-participating states.

[00:01:45] Speaker 15:
And third, EMTALA mandates that doctors care for a pregnant mother's unborn child, undercutting any argument that EMTALA mandates abortion, especially given the multiple clear statement canons that apply here.

[00:01:56] Speaker 15:
This Court should reverse.

[00:02:11] Speaker 15:
I believe that the arguments regarding the spending clause and the cause of action have been preserved.

[00:02:16] Speaker 15:
They were even presented in the application to the U.S.

[00:02:18] Speaker 09:
Supreme Court.

[00:02:40] Speaker 15:
And the motion for reconsideration, it was set forth at greater length.

[00:02:53] Speaker 15:
It appeared again at every step of the way on the way up the chain, including in the application to the U.S.

[00:02:58] Speaker 15:
Supreme Court.

[00:02:58] Speaker 15:
The justices decided that they were going to be able to do that.

[00:03:07] Speaker 15:
lower courts to address the spending clause question.

[00:03:09] Speaker 15:
Okay, but it hasn't been addressed yet.

[00:03:11] Speaker 15:
It has not been addressed by a court yet.

[00:03:13] Speaker ?:
Correct.

[00:03:24] Speaker 15:
of the spending clause issue.

[00:03:26] Speaker 15:
There are no factual disputes when it comes to the spending clause.

[00:03:29] Speaker 15:
It's a pure question of law.

[00:03:31] Speaker 15:
The Supreme Court justices were able to discuss it at length during the argument, but they chose to allow this court to address it first.

[00:03:38] Speaker 15:
When you consider the irreparable harm to Idaho of having its law enjoined every day, as well as to the harm to mothers and unborn children who are not being protected the way Idaho's law intends, I don't think we can afford to delay to go back to the district court.

[00:03:56] Speaker 09:
between you and not in conflict, is that right?

[00:03:58] Speaker 09:
That's our position, yes.

[00:03:59] Speaker 09:
Okay, then what's the problem with having an injunction since you're not being armed by the non-conflict from your perspective?

[00:04:07] Speaker 15:
Well, at minimum, the injunction is even broader than what EMTALA states.

[00:04:11] Speaker 15:
The language of it is that doctors can perform any procedure necessary to avoid an emergency condition, which is not EMTALA standard, which is necessary

[00:04:48] Speaker 09:
that care to prevent the woman from losing her limb?

[00:04:52] Speaker 15:
He would, yes.

[00:04:53] Speaker 15:
But in full candor, the United States has not presented any real world scenario where that kind of treatment was necessary.

[00:04:59] Speaker 15:
As Judge Van Dyke found in his opinion, setting aside the injunction after it was first entered, based on the Idaho Supreme Court and legislature's clarification of the law, every example the government has come up with so far is one that Idaho would allow a termination of the pregnancy because the woman's life would foreseeably be in danger.

[00:05:24] Speaker 15:
That hypothetical situation which has not been stated or replicated in any of the government's expert reports, there would be a clear difference there, yes.

[00:05:48] Speaker 12:
production of widgets.

[00:05:51] Speaker 12:
And so they create the, you know, anybody can sign up for the National Widget Program and once you do, you know, they'll send you a check of X dollars for every complaint widget that you produce.

[00:06:04] Speaker 12:
And suppose a state thinks that this is a really bad idea and so they pass a law that it is a crime to participate in the National Widget Program.

[00:06:12] Speaker 12:
Is that street law preempted?

[00:06:14] Speaker 15:
It is not.

[00:06:15] Speaker 15:
The individual making widgets could choose not to take the money and comply with state law, in which case there's no conflict.

[00:06:21] Speaker 15:
Or they could choose to take the money, produce the widget, and be prosecuted under state law.

[00:06:25] Speaker 15:
And that has to be the rule, or otherwise the United States could, for example, pay someone in California a gun shop.

[00:06:31] Speaker 15:
to violate state gun laws, or even to assassinate a state official.

[00:06:36] Speaker 15:
And the person who committed that crime would be immunized from state prosecution.

[00:06:39] Speaker 15:
And the United States Supreme Court has never understood the spending clause to grant that kind of extravagant authority.

[00:06:45] Speaker 12:
But it seems it would be one thing to say that a law like a federal statute is invalid because it exceeds Congress's power.

[00:06:56] Speaker 12:
But if it's valid, why, under the Supremacy Clause,

[00:07:04] Speaker 15:
Because it can be valid and yet the person who engages in the conduct, if they take the money, can still be subject to state civil and criminal laws.

[00:07:14] Speaker 15:
A federal government payment, a check, is not immunization from state law prosecution.

[00:07:19] Speaker 15:
Again, the Supreme Court has never understood it that way.

[00:07:22] Speaker 15:
The whole notion of the spending clause is that we're going to give you money as a carrot for you to do something in return.

[00:07:28] Speaker 15:
But that doesn't give the federal government the ability to shoulder out state criminal laws that prohibit assassination or that have restrictions on gun sellers.

[00:07:35] Speaker 12:
But normally we think that under the supremacy clause, valid federal legislation preempts state law that would frustrate its purpose or prevent it from having its full effect.

[00:07:48] Speaker 12:
Why does spending clause legislation differ from other kinds of federal legislation?

[00:07:52] Speaker 15:
To distinguish it from the commerce clause, that's the kind of legislation that applies to everywhere in all situations at all times.

[00:07:59] Speaker 15:
When you're talking about spending clause, again, there's a deal.

[00:08:02] Speaker 15:
The government is saying, I want you to do this for me and I'm going to give you money if you do it.

[00:08:06] Speaker 15:
When a state chooses not to participate in the contract, which is the

[00:08:09] Speaker 15:
here with Idaho and its public hospitals doesn't have any emergency rooms that take Medicare dollars it hasn't accepted the terms of the deal and if the US Supreme Court has said that spending term clauses have to be unambiguous and they can't be used to coerce states to do anything and a state says no I'm not going to do it then that's the end of the game the state's laws isn't that true when the state is the recipient of the funds

[00:08:33] Speaker 15:
Well, that's a different situation, and there there's a question of whether the statutory scheme, this goes to our cause of action question, is so carefully articulated that the government's only remedy, the federal government's only remedy, is to withhold the dollars as opposed to bring a lawsuit.

[00:08:47] Speaker 02:
Let me ask you about that, because I want to make sure I understand your spending clause argument here, because it seems that you're arguing that the spending clauses, your notice requirement, requires at stake

[00:09:06] Speaker 02:
And here, I'm just trying to figure out how this works because Idaho is not the recipient of the federal funds, but it seems like you're essentially saying Idaho should get a veto power over federal regulation whenever it objects.

[00:09:25] Speaker 02:
And I'm not sure how this would work in practice, if that's what you're saying.

[00:09:32] Speaker 02:
The representative of Idaho who has the power to buy and stay have to sign off on all federal legislation directed toward private entities within Idaho.

[00:09:52] Speaker 15:
has to go to the merits.

[00:09:54] Speaker 15:
Assuming that Idaho could be bound by the Medicaid Act, even though it's not taking any of the dollars for its emergency rooms, then the federal government has to clearly state the conditions that it's applying before they can be exercised against a state.

[00:10:06] Speaker 15:
That's a merits question.

[00:10:08] Speaker 15:
Here we're talking about a state which is not participating in the program at all.

[00:10:12] Speaker 15:
And the state government or the US government is entitled to contract with whoever it wants, but it can't violate state law

[00:10:19] Speaker 15:
in doing so and any more than.

[00:10:21] Speaker 15:
But doesn't the Supremacy Clause apply in that situation as well?

[00:10:25] Speaker 15:
Right, but the Supremacy Clause only applies when there's going to be a conflict between the laws and there's no conflict if the individual in the state complying with state law chooses not to engage in the conduct and accept the money.

[00:10:37] Speaker 15:
Let me use an example.

[00:10:38] Speaker 15:
So you have

[00:10:43] Speaker 15:
And if the federal government had invoked say commerce clause power in that situation, the United States Supreme Court would not have reached a different result because it was all about what was fair notice to the states and what did they agree to not participating states could not be bound to a Medicaid

[00:11:01] Speaker 15:
expansion program that they did not want.

[00:11:04] Speaker 15:
So when you're talking about the Commerce Plus power, yes, then Congress combined everybody.

[00:11:07] Speaker 15:
States don't have anything to say about that if there's a conflict.

[00:11:10] Speaker 15:
But when the government is doling out money in exchange for conduct, then the situation is different.

[00:11:15] Speaker 15:
They can't pay state residents to violate state law and immunize them from state criminal law.

[00:11:41] Speaker 13:
And the state, you know, comes in and says, we're going to criminalize if you do that very thing.

[00:11:46] Speaker 13:
But in that instance, it would be very, it would be very clear what the government was, you know, in the hypothetical, like I was trying to think of a hypothetical where it wasn't very clear that the federal government was instructing, we are going to give you a subsidy to do this thing.

[00:12:00] Speaker 13:
But that this very case is not clear.

[00:12:01] Speaker 13:
It just seems to me like, like,

[00:12:11] Speaker 13:
There's not a conflict because there's a way.

[00:12:15] Speaker 13:
But if it's not even clear that the federal government's telling them to bill more widgets, we just think the federal government might be telling them to bill more widgets.

[00:12:22] Speaker 13:
It seems to me that the clear statement aspect of it has some work to do in how we interpret the federal government's requirement.

[00:12:30] Speaker 13:
Am I wrong on that?

[00:12:31] Speaker 15:
I think you're exactly right, Judge Van Dyke.

[00:12:33] Speaker 15:
I think it has aspects to both.

[00:12:34] Speaker 15:
With respect to our merits question, the fact that Congress did not make clear that EMTALA requires abortions in the

[00:12:43] Speaker 15:
to not include that requirement but then on the front end with respect to the spending clause the fact that congress has not been clear that abortions are required here makes it even less likely that a state which has not entered into the contract would somehow see its laws preempted when it doesn't participate in the program so i i think you're absolutely right that that has some purchase in both contexts and because my time's already growing short

[00:13:16] Speaker 03:
can't have its law in effect is a terrible day.

[00:13:20] Speaker 03:
But none of the things that anyone's talked about have happened.

[00:13:23] Speaker 03:
A lot of things have changed on the ground.

[00:13:25] Speaker 03:
And we have a new administration.

[00:13:29] Speaker 03:
Why shouldn't we just send everything back to the district court

[00:13:43] Speaker 15:
that there is ongoing harm to Idaho, because although there's no conflict between our interpretation of the statutes, the federal government, which has walked back with its four concessions it made to the Supreme Court, has a much broader understanding of what EMTALA requires.

[00:13:56] Speaker 15:
And finally, because none of the three legal issues that we present, spending clause, cause of action, and the merits, require any fact finding whatsoever, I would like to reserve some time for rebuttal.

[00:14:05] Speaker 15:
But if you would prefer to keep asking questions, would you like me to proceed?

[00:14:10] Speaker 02:
You reserved your time.

[00:14:11] Speaker 15:
All right, I'll reserve my remaining time.

[00:14:13] Speaker ?:
Thank you.

[00:14:40] Speaker 01:
Good afternoon.

[00:14:41] Speaker 01:
May it please the court tailor me in on behalf of the Idaho legislature.

[00:14:45] Speaker 01:
I'd like to start with the text for my portion of the argument.

[00:14:50] Speaker 01:
EMTALA puts a thumb on the scale for Idaho in this case.

[00:14:54] Speaker 01:
Subsection F sets a default rule that state law generally will not be preempted by EMTALA.

[00:15:00] Speaker 01:
And here, the United States has made no showing of a direct conflict to overcome that default rule.

[00:15:07] Speaker 01:
It beggars belief that there's a direct conflict between Idaho's Defense of Life Act and EMTALA when the Idaho legislature has drawn the same line as Congress.

[00:15:17] Speaker 00:
The fact that five out of the nine Supreme Court justices have indicated that they see a conflict here between EMTALA and the Idaho statute and that the Idaho Supreme Court itself in the Planned Parenthood decision also seems to acknowledge a daylight between the two.

[00:15:37] Speaker ?:
what we do here.

[00:15:38] Speaker 01:
Two responses Judge Code.

[00:15:40] Speaker 01:
The first is that I think the way to read Justice Barrett's concurring opinion is she actually thought a dig was warranted in the case because she wasn't so sure there was any actual conflict and in taller covered circumstances.

[00:15:52] Speaker 00:
Justice Alito and Justice Thomas very explicitly said there was daylight between the

[00:16:02] Speaker 01:
And what Justice Alito is saying is in this one circumstance, previability, preterm rupture of membranes, there might be a conflict as the government interprets EMTALA.

[00:16:14] Speaker 01:
And that's a key phrase there.

[00:16:16] Speaker 01:
As the government interprets EMTALA in its briefs, it's different than what the government's witnesses said under penalty of perjury.

[00:16:23] Speaker 01:
So in the government's brief here, the government has said that in that circumstance of premature previability rupture of membranes, that immediate

[00:16:39] Speaker 01:
that Justice Alito's dissent says that one of the differences is health versus life, and that's pretty... And with all due respect to Justice Alito, but more importantly, that I don't think a side-by-side comparison of state law and federal law is the way to do the preemption analysis here, because you can't declare if state law preempted based on hypothetical conflict.

[00:17:01] Speaker 01:
And when you look at the federal government's declarations, it's the federal government who has said, taking Idaho law for what the Planned Parenthood decision says, that there actually probably isn't a conflict in that particular, the one example that Justice Alito includes in his dissent.

[00:17:20] Speaker 01:
I point you to paragraph 19 of Dr. Fleischer's declaration.

[00:17:24] Speaker 00:
And in Planned Parenthood, the Idaho Supreme Court looked at the definition of medical emergency

[00:17:33] Speaker 00:
And that has the language, necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

[00:17:48] Speaker 00:
And the Idaho Supreme Court looked at that medical emergency definition and said that

[00:17:56] Speaker 00:
could be a difference between what's in EMTALA and what's in the total abortion ban, which is how they refer to the statute at issue here.

[00:18:07] Speaker 01:
And the district court and the government has certainly said that that could happen, but what matters is whether there's been an

[00:18:18] Speaker 01:
And if you look at the declarations, Dr. Fleischer for the government said it best.

[00:18:23] Speaker 01:
She said after reviewing the legislature's witness's declarations, it seems the only disagreement between the physicians who testified in this case is the interpretation of Idaho law.

[00:18:34] Speaker 01:
They've all described the circumstances as life threatening.

[00:18:37] Speaker 01:
So another way of thinking about it is that

[00:18:40] Speaker 01:
you know, abortions required for health but in circumstances short of life is a null set, at least if you look at the declarations of the two witnesses.

[00:18:50] Speaker 04:
One way in which you could prevail is in showing that just as a record-based evidence matter, these two laws are actually overlapping and are the same, but Justice Leto seemed to have a different view.

[00:19:01] Speaker 04:
Nonetheless, he favored your position essentially as a matter of law under the text of Intala.

[00:19:07] Speaker 01:
that's right I think there's three ways for us to prevail the spending clause arguments would be one of them what I've been discussing would be the narrowest way where if you actually do look

[00:19:18] Speaker 01:
I think we prevail that way.

[00:19:20] Speaker 01:
But perhaps the clearest and simplest way to prevail is based on the text of EMTALA itself, as well as the Medicare Act.

[00:19:27] Speaker 01:
So I think there are four or five pieces of the text that I'd love to run through.

[00:19:33] Speaker 01:
The first would be subsection F, which again puts a thumb on the scale for Idaho.

[00:20:08] Speaker 01:
I agree that EMTALA doesn't mention particular treatments.

[00:20:11] Speaker 01:
And when we're talking about what stabilizing treatment EMTALA might require, that doesn't free a hospital from not giving that stabilizing treatment.

[00:20:18] Speaker 01:
But here the question presented is slightly different.

[00:20:20] Speaker 01:
EMTALA doesn't mention abortion.

[00:20:22] Speaker 01:
It does mention unborn child.

[00:20:25] Speaker 01:
And given the subsection F's default rule, should we interpret EMTALA

[00:21:09] Speaker 01:
I don't your honor so first a legal point which is that while a hypothetical could show a hypothetical conflict or a possible speculative conflict that's not sufficient for the preliminary injunction

[00:21:36] Speaker 01:
that the only disagreement is what Idaho law allows and the plan parenthood decision says three things that are critically important and take out any disagreement I think between the government's witnesses and the legislature's witnesses that all these circumstances are life-threatening.

[00:21:55] Speaker 01:
Here are the three things that are critically important and take out any disagreement I think between the government's witnesses and the legislature's witnesses.

[00:22:06] Speaker 01:
the Idaho legislature or the Idaho Supreme Court says first they say that the exception for pregnancy termination pre viability necessary to preserve the life is based on the good faith subjective judgment of that physician in the emergency room based on the real time

[00:22:30] Speaker 01:
I'd really look close at page 1204 of the opinion, Your Honor, because the Idaho Supreme Court is going out of its way to say we don't want the prosecutor second-guessing that.

[00:22:39] Speaker 09:
You have a prosecutor – and I forget the name of the prosecutor – who said – this was a he – said he would prosecute if he determined that in his judgment the physician was not acting in good faith.

[00:22:50] Speaker 01:
I think – the Idaho Supreme Court says, of course, you could question whether the judgment is in good faith if an abortion is provided for a paper cut.

[00:22:58] Speaker 01:
Right, we would expect a prosecutor to question that judgment.

[00:23:01] Speaker 01:
But if you look very closely at page 1204 of the opinion, the Idaho Supreme Court is declining to put any more standards on that good faith of judgment.

[00:23:24] Speaker 10:
within the things that were allowable under the statute?

[00:23:28] Speaker 01:
We absolutely did, Your Honor.

[00:23:30] Speaker 10:
We did.

[00:23:30] Speaker 10:
And so my question is, has anything happened since that time?

[00:23:34] Speaker 10:
Has there been an initiative to amend the statute to add all the different conditions that are allowed to be performed by doctors in Idaho?

[00:23:47] Speaker 01:
No, Your Honor, and I think it actually relates to my answer to Judge Smith, which is the more you put in the statute,

[00:23:53] Speaker 01:
the more you start to limit the physician's good faith belief.

[00:23:57] Speaker 01:
But our witnesses, the legislature's witnesses, agreed with the government's witnesses.

[00:24:02] Speaker 01:
Indeed, Dr. Reynolds goes so far in paragraph eight of her declaration to say that the failure to treat pre-prom as a life-threatening condition would be malpractice.

[00:24:29] Speaker 01:
I think that might have been true at the time of Judge Windmill's decision when the statute was still phrased as affirmative defenses, but now that the statute's exceptions, I think that that falls out of the case.

[00:24:40] Speaker 09:
So you don't think the burden is on the physician to save his or her career and possibly avoid some jail time?

[00:24:47] Speaker 01:
No, if anything, the burden's on the prosecutor who's as bound by the Idaho Supreme Court decision to decide to bring charges against a

[00:25:06] Speaker 01:
to be clear, the Idaho's Defense of Life Act is a prohibition on criminal abortions.

[00:25:11] Speaker 01:
It expressly distinguishes criminal abortions from necessary medical treatment.

[00:25:15] Speaker 01:
It's not a statute about emergency care.

[00:25:17] Speaker 01:
It's a statute that primarily, you know,

[00:25:25] Speaker 01:
And that's why I think the legislature's witness's declarations are so important.

[00:25:29] Speaker 01:
Dr. French explains at the beginning of his declaration that he doesn't understand someone who's created him taller procedures in ERs and in Idaho and beyond, he doesn't see abortion as first line medical treatment in emergency rooms.

[00:25:49] Speaker 10:
especially for someone who lives in Washington, in Eastern Washington specifically, has visited places like Sandpoint and understands that their whole obstetrics department has closed down so that this area in Sandpoint that's a place that some of us visit all the time, there are no services available for women

[00:26:26] Speaker 01:
Well, a couple of responses, Your Honor.

[00:26:28] Speaker 01:
First, I don't think him tall is the statute to solve that circumstance.

[00:26:31] Speaker 01:
Second, Dr. Reynolds said there's a nationwide shortage of OBs.

[00:26:34] Speaker 01:
And third, with respect to him, tallest specifically, if a patient is experiencing catastrophic bleeding, there's no disagreement that Idaho law allows treatment for them.

[00:26:53] Speaker 10:
What do we do in that circumstance?

[00:26:57] Speaker 10:
Does she have to then rely on, hopefully, a working vehicle to drive across the border into Spokane, Washington, in order to get services there?

[00:27:06] Speaker 01:
No, Your Honor, and I point you to pages 415 of the Legislative's ER.

[00:27:12] Speaker 01:
I point you to pages 417 to 418.

[00:27:14] Speaker 01:
I think Dr. French is speaking to exactly the circumstance that you're imagining.

[00:27:19] Speaker 01:
And he says when you have uncontrollable bleeding— Let's not imagine.

[00:27:31] Speaker 10:
example, which is the very thing that Congress was trying to avoid.

[00:27:35] Speaker 10:
They were trying to set a baseline level of care for the country.

[00:27:40] Speaker 10:
And this happens to be one of the services that is necessary under certain medical situations.

[00:27:47] Speaker 01:
The legislature's witnesses agree with that.

[00:27:49] Speaker 01:
The Idaho Supreme Court agrees with that.

[00:27:51] Speaker 01:
The Idaho Supreme Court's decision that you don't delay care, that you don't wait, contrary, for example, to some of the amicus briefs we've seen until a woman is on death's door,

[00:27:59] Speaker 01:
That is the law in Idaho.

[00:28:01] Speaker 01:
And again, as the legislature's witness said, if you're if you're requiring that woman to bleed out in the emergency room, that's in her words, a

[00:28:18] Speaker 01:
the decision and the Supreme Court's decision in R.A.B.

[00:28:21] Speaker 01:
makes clear that authoritative statement on Idaho law is binding here.

[00:28:25] Speaker 01:
There's no conflict in the declarations, but if I could with my remaining time,

[00:28:31] Speaker 01:
And to say that EMTALA then speaks clearly in the opposite direction that you must terminate that unborn child's life, I just don't think it's unambiguously clear under the spending clause.

[00:28:48] Speaker 01:
I don't think it's clear enough under the 10th Amendment.

[00:28:49] Speaker 01:
And I don't think it's clear enough under the 10th Amendment.

[00:29:16] Speaker 01:
Whenever I think about him tall, I always start with subsection F.

[00:29:25] Speaker 01:
And so then I go and look for a direct conflict.

[00:29:28] Speaker 01:
And I think subsection E is where you go next, where you have the reference to unborn child, and then you also just have general references to such treatment.

[00:29:36] Speaker 01:
And given that reference, such treatment plus subsection F, I'm convinced that EMTALA operates alongside state law.

[00:29:44] Speaker 01:
One way to think about it is EMTALA is operating at the higher level of generality than state law allowable medical treatments.

[00:29:51] Speaker 01:
I do think that... Can I ask about the PDSE?

[00:29:56] Speaker 00:
It does seem like in the statutory language that there is a conflict there because I'm looking at section E, the definition section, and it says absence of immediate medical attention could reasonably be expected to result in, whereas the Idaho state law says necessary to prevent.

[00:30:14] Speaker 00:
So going back to the

[00:30:19] Speaker 00:
with regard to PPROM and preeclampsia, there is a question of whether the doctors would need to delay to get to the point of necessary to prevent death in order not to be subject to a two-year mandatory minimum state prison sentence, possibly up to a five-year prison sentence, and to lose their license.

[00:30:38] Speaker 01:
I do agree that the statutes are written differently, but I

[00:30:45] Speaker 01:
I think it's important to understand that the government has to run the table on the question.

[00:31:06] Speaker 01:
And that it does require medical providers to provide abortions that Idaho prohibits and Congress won't pay for.

[00:31:13] Speaker 01:
And I just don't think the government has made that showing here and would ask that the preliminary injunction be vacated on those grounds.

[00:31:19] Speaker 01:
Thank you.

[00:31:42] Speaker 08:
Good afternoon, may it please the court, Katherine Carroll on behalf of the United States.

[00:31:48] Speaker 08:
EMTALA requires that when a patient comes to a covered emergency room, suffering from a medical emergency that threatens her life or her health, the hospital must provide stabilizing treatment.

[00:31:59] Speaker 08:
That is, the treatment that's necessary to meet a specified medical objective consistent with evidence-based clinical standards, and that is the ability

[00:32:10] Speaker 08:
and reasonable medical probability that the condition will not materially deteriorate upon the patient's discharge or transfer.

[00:32:18] Speaker 08:
Tragically the record in this case

[00:32:29] Speaker 08:
sufficient to stabilize the condition is termination of the pregnancy.

[00:32:35] Speaker 08:
In those circumstances, EMTALA requires the hospital to offer the treatment, but Idaho law prohibits it unless the physician can conclude at that moment in their subjective medical judgment that providing the termination is necessary to prevent the patient's

[00:33:02] Speaker 00:
because it was presented before the state legislature amended the statute, before the Idaho Supreme Court clarified.

[00:33:13] Speaker 00:
Why is your evidence not obsolete now?

[00:33:16] Speaker 08:
So I guess a couple of points on that.

[00:33:19] Speaker 08:
First of all, I think the changes in the law that have come about as a result of both the Planned Parenthood decision and the Idaho Legislature's amendments are not changes that eliminated the conflict and the conditions that our declarants described, and I would refer to

[00:33:35] Speaker 08:
in particular to the supplemental declarations of Drs.

[00:33:38] Speaker 08:
Cooper, Corrigan, and Fleischer.

[00:33:41] Speaker 08:
I think those situations all continue to arise in the gap between Idaho law and EMTALA, as we saw earlier this year during the time when the injunction was stayed.

[00:33:51] Speaker 08:
And several patients, indeed, had to be airlifted out of Idaho because of the conflict between Idaho law.

[00:33:58] Speaker 08:
And I think here, again, I agree with my friend that the Planned Parenthood decision is crucial here.

[00:34:05] Speaker 08:
And I would refer to pages 1196 and 1207 of the decision, where, as Your Honor pointed out, the court explicitly

[00:34:17] Speaker 08:
with the broader medical emergency exception that had existed in another Idaho law.

[00:34:22] Speaker 08:
And the court recognized that that broader exception in the other law is, quote, substantially similar to EMTALA, but does not appear in section 18-622.

[00:34:34] Speaker 04:
Now, it's true that- The issue of the distinction between Idaho law and federal law really only becomes relevant if

[00:34:45] Speaker 04:
anything about Idaho law on the topic that we're talking about and here we have a federal law that your argument is that it has there's essentially a federal medical standard of care

[00:34:58] Speaker 04:
Where do you see that in the statute?

[00:35:00] Speaker 08:
So that is not our position.

[00:35:02] Speaker 08:
We read MTALA to require the hospital to make an evidence-based, reasonable medical judgment about what care is required, not in an one-size-fits-all way of particular treatment, of particular conditions, but to look at the facts of a specific case and to ask, what are this patient's conditions and symptoms?

[00:35:22] Speaker 08:
What is her personal risk factors, her medical history,

[00:35:28] Speaker 08:
Several places, I think.

[00:35:30] Speaker 08:
First of all, the text defines stabilizing treatment with respect to an objective concrete care objective, which is to prevent material deterioration of the condition.

[00:35:41] Speaker 08:
In several places throughout the statute, and I'm looking in the definition of stabilized, the definition of emergency medical condition, and the provisions covering

[00:35:54] Speaker 08:
medical judgment and critically in the procedure that Congress established for the enforcement and investigation of alleged violations, Congress again invoked those kinds of evidence

[00:36:09] Speaker 04:
whose medical judgments, because your argument is that it's not the medical judgments of those in Idaho who have crafted the Idaho law that's before us.

[00:36:20] Speaker 04:
And one would wonder why when the statute talks about control over the practice of medicine and the manner in which medical services are being provided, it's something that's reserved to the states.

[00:36:33] Speaker 08:
We think that the definition of stabilizing care and the obligation to provide it are not defined by reference to state law.

[00:36:41] Speaker 08:
They're defined by reference to the physician and the hospital's reasonable medical judgment.

[00:36:46] Speaker 08:
Again, under the QIO program, and this is laid out not only in EMTALA, but in the provision that establishes the QIO review program, and that's at 42 USC.

[00:37:00] Speaker 08:
And it sets out that what Congress said, when there's a complaint alleging a violation of EMTALA, the process should proceed essentially as a peer review kind of process, where an expert physician who's a specialist in the implicated area of medicine will go in and talk to people to understand what decisions were made, what were the facts, the clinical facts on the ground, what judgment did you make, what diagnosis did you reach.

[00:37:26] Speaker 08:
what treatment did you determine was necessary, and the sort of guided, structured forms that guide this investigation lay those out.

[00:37:36] Speaker 08:
The inquiry throughout that process is, did you make reasonable clinical decisions?

[00:37:42] Speaker 08:
We think that's the standard that EMTALA invokes.

[00:37:45] Speaker 08:
It's very similar, actually, I think, to the Medicaid language that this court construed in Planned Parenthood versus VetLAC.

[00:37:52] Speaker 08:
which construed the free choice of provider language in Medicaid, which references qualified personnel.

[00:38:00] Speaker 08:
And the state of Arizona said, well, we're allowed to decide who's qualified.

[00:38:04] Speaker 08:
And this court held, no, we think the statute is better read to reference objective medical realities like competence, medical acceptability, professional recognition.

[00:38:14] Speaker 11:
If to the con- I just want to add to that for a second.

[00:38:16] Speaker 11:
The process that you've just described, in your view, does it leave any space at all?

[00:38:21] Speaker 11:
law or regulation to come to bear?

[00:38:23] Speaker 08:
For state law in particular, yes.

[00:38:25] Speaker 08:
We think that in many cases, if probably most cases, EMTALA and state law harmoniously operate alongside each other.

[00:38:33] Speaker 08:
Maybe I can sort of explain how that works with our understanding of

[00:38:39] Speaker 11:
of where in the statute do we get that guidance because what I understood you to say is based on these definitions there's just basically a medical judgment or evidence-based standard.

[00:38:52] Speaker 11:
I think that that's probably true most of the time when we're talking about medical judgments but my understanding of how this has always worked is that there's always sort of in the background legal regulation like

[00:39:07] Speaker 11:
understand when you're describing how you see how this works where that comes to bear in this situation and if you think it does

[00:39:18] Speaker 08:
Yes, so a few responses to that.

[00:39:20] Speaker 08:
First of all, in EMTALA, Congress did completely agree that subsection F is an important provision here.

[00:39:27] Speaker 08:
And it makes clear that as long as state law does not directly conflict with EMTALA, then state law can apply.

[00:39:33] Speaker 08:
But where there is a direct conflict, then state law is preempted.

[00:39:37] Speaker 08:
And this court construed that language in Draper to make clear that impossibility of obstacle preemption.

[00:39:42] Speaker 11:
Based on what the standard of care is.

[00:39:44] Speaker 11:
And so if your argument is the standard of care

[00:39:48] Speaker 11:
medical judgment, then doesn't that categorically set aside Idaho's standard?

[00:39:57] Speaker 08:
In most cases it will not.

[00:39:59] Speaker 08:
So, you know, my friends have brought up the example, for instance, of, you know, sort of situations where, you know, the blood bank is empty or, you know, thinking about organ transplant

[00:40:14] Speaker 08:
First of all, no doctor would ever conclude that it's consistent with evidence-based accepted clinical practices to, you know, go sort of harvest organs from people waiting in the waiting room.

[00:40:59] Speaker 13:
me under your standard, if that doctor thought, you know, we've got the organ sitting here, it's just going to go bad, like we should put this in, that's how we're going to stabilize this patient within our reasonable medical judgment.

[00:41:12] Speaker 13:
If the organ hadn't been unethically harvested, we would totally use it.

[00:41:16] Speaker 13:
It's not any sort of scientific thing that's driving it.

[00:41:20] Speaker 13:
It's purely an ethical consideration that was made by the state's regulations.

[00:41:24] Speaker 13:
Under your test, it seems to me they would have to

[00:41:27] Speaker 13:
that your view of Intala is that it would preempt the state's law that said you cannot use unethically organs that were harvested or whatever you want to call it, unethically.

[00:41:41] Speaker 08:
Yeah, so to be very clear, we don't think state law is preempted unless it directly conflicts by prohibiting.

[00:41:51] Speaker 13:
So if you were to say that this is not direct, then it goes back to, it's not direct enough, then I think that's exactly what Judge Forrest and Judge Bresford were just asking, is that how is this other conflict that you're finding direct enough?

[00:42:03] Speaker 13:
Because it seems like it's very similar.

[00:42:05] Speaker 08:
Maybe it would help to unpack a little bit how we understand all of this to work and what we think the respective roles of federal and state law here are.

[00:42:12] Speaker 08:
Under EMTALA, again, we think the stabilizing treatment is best read to mean a judgment based on evidence-based clinical standards about what treatment is necessary to meet the specific objective that the statute sets, i.e., to prevent material deterioration of the condition.

[00:42:31] Speaker 08:
The physician is going to make a judgment about, based on those facts, what is that stabilizing treatment.

[00:42:37] Speaker 08:
Once the stabilizing treatment is identified, EMTALA requires the hospital to offer it if it's available within the staff and facilities of the hospital.

[00:42:46] Speaker 08:
I think a lot of the hypotheticals that we've heard are addressed by that requirement because I don't think that anybody would think that illegally procured organs or the blood of the patients... We just discovered that it was illegally procured and it's clear that

[00:43:06] Speaker 13:
illegally procured organs but I have a problem as a physician because I'm sitting there and I know this will I know this will help the person's health and so when you're saying I'm tall I preempt that I think if I'm following your logic.

[00:43:20] Speaker 08:
So it's a little hard, I understand you don't want me to fight the hypothetical, it's a little hard to engage with this particular one because organ transplants do not occur in emergency rooms and EMTALA is an emergency room statute.

[00:43:34] Speaker 08:
But to take the question a little bit, a level up in generality, we think that state laws can and do routinely

[00:43:43] Speaker 08:
apply to the safe and effective provision of medical treatment, so long as they're not taking off the table the only treatment that will suffice to stabilize the medical condition.

[00:44:12] Speaker 13:
organ from one person against their will.

[00:44:15] Speaker 13:
And so, do you think that a state's ethical concerns or anybody's ethical concerns have any role to play in what counts as within a reasonable medical judgment?

[00:44:27] Speaker 08:
So, again, we think that identifying the stabilizing treatment is a medical question.

[00:44:32] Speaker 13:
And then, EMTALA provides that- Medical usually has some ethics built into it.

[00:44:37] Speaker 13:
So, that's my question is, can ethics be built into that?

[00:44:40] Speaker 13:
Because if ethics can be built into it,

[00:44:47] Speaker 08:
If the result of the states, whether it's an ethical judgment, whatever the basis of the judgment is, if the result of their judgment is that a hospital covered by Medicare cannot provide the only treatment that would suffice to assure

[00:45:07] Speaker 08:
emergency will not continue to deteriorate, then we think that's preempted.

[00:45:12] Speaker 08:
The circumstances we're talking about here, the reason why this all sounds quite outlandish is because it's actually highly unusual for the sort of background state law principles that do operate here in

[00:45:23] Speaker 08:
ever to say a particular treatment that's clinically indicated that doctors would all agree is the necessary treatment in particular circumstances is just unavailable.

[00:45:33] Speaker 08:
I think to the extent on the rare situations where that does come up, I think the Fourth Circuit's decision in matter of baby K is an example where the court said yes, if to the extent the state has said you cannot provide the one and only treatment that will stay

[00:46:14] Speaker 13:
Is the answer a yes or no on that?

[00:46:16] Speaker 08:
I think the answer is yes, so long as the hospital can still comply with its obligation under EMTALA.

[00:46:22] Speaker 08:
So in the situation where there are two potential stabilizing treatments and the state has taken one off the table, as in any preemption case you would ask, can I still comply with state law and with EMTALA?

[00:46:35] Speaker 08:
And the answer is yes, because I still have a treatment available that's appropriate for this patient.

[00:46:49] Speaker 02:
So Ms.

[00:46:52] Speaker 02:
Meehan had said that there is no daylight between, since the passing of the amendments and the Idaho Supreme Court case, that there's really no daylight between serious injury to the pregnant woman or possible death.

[00:47:21] Speaker 08:
And Judge Mendoza asked about, you know, if, to the extent the legislature didn't intend to prohibit medically necessary termination treatment

[00:47:43] Speaker 08:
but does pose a risk of serious impairment of the patient's health, why not amend the law to reflect that?

[00:47:49] Speaker 08:
And I think it's notable that Idaho did amend its law after Planned Parenthood.

[00:47:54] Speaker 08:
It made certain changes, but notwithstanding the fact that the Idaho Supreme Court had pointed out this gap between the necessary to prevent death exception and the standard set in EMTALA, it did not make any changes to the scope of that definition.

[00:48:10] Speaker 08:
And the declarations make clear that this is a gap that exists in the real world, in real cases, where real people are coming into the emergency room facing not only the tragic loss of their pregnancy, but also the potential to permanently lose their fertility and antipathy.

[00:48:27] Speaker 08:
The possibility of ever becoming pregnant again in the future.

[00:48:30] Speaker 08:
The possibility of kidney damage leading to lifelong dialysis.

[00:48:34] Speaker 08:
The possibility of limb amputations, Judge Smith.

[00:48:37] Speaker 08:
The declarations, and again I'm looking in particular at Doctors Cooper, Corrigan, and Fleischer in the supplemental declarations.

[00:48:45] Speaker 08:
They illustrate that these are real cases.

[00:48:48] Speaker 08:
Thankfully, rare, but they are real, and this is a narrow and critical conflict.

[00:48:54] Speaker 08:
Idaho law can operate like other state laws alongside EMTALA in any number of cases, but in this narrow critical space where it does conflict and where it does lead to situations like the airlifts that we saw during the stay earlier this year, that is conflict and it is- How is this not the regulation of the practice of medicine or the regulation of the manner in which

[00:49:24] Speaker 08:
physician in the hospital in the situation.

[00:49:27] Speaker 08:
It's not mandating the particular treatment.

[00:49:30] Speaker 08:
It's leaving space for the physician to identify in their practice of medicine what is the clinically acceptable treatment.

[00:49:38] Speaker 08:
So we don't think that's a regulation of medicine to the extent that EMTALA and indeed the Medicare Act and all of its conditions of participation in general

[00:49:47] Speaker 08:
touch on the manner in which medical care is provided, of course, that's part and parcel of the whole point of EMTALA, which was to say, prior to its enactment, you have this problem of patient dumping, and largely because many states did not recognize a duty to treat.

[00:50:05] Speaker 08:
And so the whole point of the statute

[00:50:09] Speaker 08:
that state law judgment and impose a requirement that hospitals provide stabilizing treatment.

[00:50:16] Speaker 08:
And as the Supreme Court pointed out in the CMS vaccine case, Biden versus Missouri, that is like any number of other conditions of participation in Medicare, which in many respects do influence how medicine is practiced.

[00:50:33] Speaker 08:
the the the appellants reading of section 1395 and the idea that this infringes on the or attempts to control

[00:51:05] Speaker 08:
that this is valid spending clause legislation, including that it was clear to hospitals that accept Medicare funding that they would be required as a condition of that to comply with EMTALA.

[00:51:20] Speaker 04:
think it has to be a level down to comply with the level of medical care you're advocating here?

[00:51:27] Speaker 04:
Because it's clear that one has to comply with EMTALA, that's sort of obvious, but we're talking about something much more specific to provide abortions in certain specific instances in which state law would disallow them.

[00:51:40] Speaker 08:
So first of all, I'm not sure that the Pennhurst decision does require that level of specificity, but even if it did, I think the record here from the declarations from the

[00:51:52] Speaker 08:
that appellants made in their answers in the district court reveal that, in fact, the hospitals did understand what this condition meant and voluntarily agreed to it.

[00:52:02] Speaker 08:
And it's been a fairly widely accepted, understood interpretation of EMTALA to say that it does, in fact, in some narrow circumstances require pregnancy termination.

[00:52:16] Speaker 08:
And we've cited evidence from HHS's understanding, the medical community's understanding, hospitals, even courts, long before the decision in Dobbs, in which, and these are cited at pages 18 to 20 of our brief, illustrating that people did understand EMTALA to, in fact, require that.

[00:52:34] Speaker 08:
Now, with respect to the spending clause, I want to address the merits of the point, but just to add to your point, I do think it's important to note that

[00:52:41] Speaker 08:
The argument that this court is hearing now was not raised until this case got to the Supreme Court.

[00:53:07] Speaker 08:
I think Judge Windmill should have the opportunity to consider in the first instance for a few reasons.

[00:53:12] Speaker 08:
First of all, taking a cue from the Supreme Court, we understand that to be what they were contemplating when they said the lower courts, plural, should have the opportunity to consider this.

[00:53:23] Speaker 08:
Judge Windmill had in front of him, as you noted,

[00:53:25] Speaker 08:
a footnote referencing the question of whether this was valid spending legislation in the first place.

[00:53:32] Speaker 08:
But the argument we're hearing now, it's been a moving target.

[00:53:36] Speaker 08:
The argument they're making now, as I understand it, is even assuming this is valid spending legislation, nonetheless it can't preempt state law.

[00:53:45] Speaker 08:
We think that's wrong.

[00:53:49] Speaker 08:
nice spending legislation to be preemptive, but that is an argument that has not been made in this litigation until the case got to the Supreme Court.

[00:53:57] Speaker 08:
And the reason why... If I could just jump in real quick.

[00:54:00] Speaker 14:
This is the question I'm waiting to ask.

[00:54:01] Speaker 14:
So if that is the case, could we affirm, because this whole argument's been like this is a permanent injunction.

[00:54:09] Speaker 14:
It's not.

[00:54:10] Speaker 14:
This is a preliminary injunction case.

[00:54:12] Speaker 14:
All the arguments that we've heard today can be made to Judge Windmill when you have full discovery and a full trial, correct?

[00:54:19] Speaker 08:
I think that's absolutely correct.

[00:54:21] Speaker 08:
The question of affirming the preliminary injunction is easily answered by the fact that the record before Judge Windmill was adequate to support his findings.

[00:54:28] Speaker 08:
At that time.

[00:54:29] Speaker 08:
At that time, and with respect to the new arguments that have been developed, I don't think the court needs to grapple with them to affirm the PI, and partly that's because, although in some sense it is a purely legal question, I think

[00:54:44] Speaker 08:
the parameters of the argument as I understand it actually do intersect with the claims they're now making that notwithstanding the text and the Idaho Supreme Court decision, Idaho law in fact doesn't pose a conflict here because as I understand their argument on the on the spending clause issue, they're saying even though Idaho didn't accept funds and is not being required to comply with any conditions, somehow they have

[00:55:11] Speaker 08:
a veto power over an exercise of spending authority that would conflict with their laws.

[00:55:17] Speaker 08:
But if their principal submission is that there is no conflict and they intend to pursue that argument in front of Judge Windmill, then I'm not sure what comes of their spending clause argument because if you have a situation where there is no interference with the state's prerogative to enforce a conflicting law, then I don't see any basis whatsoever for even trying to distinguish

[00:55:42] Speaker 08:
we've identified in which the court has held that spending clause legislation does preempt conflicting state law.

[00:55:48] Speaker 14:
Just like a jump in, just again, procedurally.

[00:55:50] Speaker 14:
So we're reviewing a preliminary injunction, correct?

[00:55:53] Speaker 14:
Abuse of discretion standard.

[00:55:54] Speaker 14:
All this stuff we've been arguing about today

[00:55:57] Speaker 14:
will be argued again to the district court if the United States government still decides it's going to pursue a permanent injunction, correct?

[00:56:05] Speaker 08:
That's correct.

[00:56:06] Speaker 08:
And so for that reason, we think that the most straightforward course here is to affirm the preliminary injunction.

[00:56:12] Speaker 08:
And to the extent appellants want to seek to modify or vacate the injunction or simply want to proceed on summary judgment to final judgment, they can do all of that.

[00:56:23] Speaker 08:
So yes, with that

[00:56:26] Speaker 08:
But you could also vacate and send it all back, too.

[00:56:31] Speaker 08:
There's no ground for vacating the injunction, though.

[00:56:33] Speaker 08:
Well, I'm just saying, we could.

[00:56:36] Speaker 08:
I mean, that's not what you're asking for, but that is an option.

[00:56:41] Speaker 08:
That is on the list of potential dispositions in an appeal from a preliminary injunction, yes, but we think it's not available here for several reasons.

[00:56:48] Speaker 08:
First of all, we...

[00:56:55] Speaker 08:
I think we've talked a lot about the merits issues here and the likelihood of success that I think we amply established by putting in the declarations even in light of the changes that have happened in Idaho law.

[00:57:06] Speaker 08:
But I think I don't want to lose sight of the irreparable harm situation that led the district court to impose the preliminary injunction here.

[00:57:14] Speaker 08:
And this again goes to the fact

[00:57:15] Speaker 08:
that we are talking here about real people and real lives in real tragic circumstances and the implication of a parent's position of their reading of EMTALA that it can never under any circumstances mandate termination of a pregnancy as an appropriate stabilizing treatment is that a state could

[00:57:37] Speaker 08:
pregnancy in any circumstance, even when the patient is literally on death's door.

[00:57:43] Speaker 08:
And in their view, EMTALA would say nothing about that, and the United States government would have no power, no cause of action, no constitutional authority to speak up and do anything about that, even though Congress made a policy judgment here that in those circumstances, emergency medical care must be provided, or at least offered.

[00:58:03] Speaker 08:
I see I'm running low on my time, if there's any other issues that the court would like to touch on.

[00:58:09] Speaker 08:
I think we've touched on a lot of them.

[00:58:11] Speaker 08:
Thank you very much.

[00:58:13] Speaker 08:
Thank you.

[00:58:13] Speaker 05:
May it please the court, Lindy Harrison, on behalf of Amicus St.

[00:58:42] Speaker 05:
of stabilizing medical care available to them.

[00:58:45] Speaker 05:
And if the injunction were vacated, we would be returned to that state.

[00:58:49] Speaker 05:
And I can tell you from having spoken with doctors in Idaho that it is a horrible situation to put them in, because they are faced with a conflict between complying with their federal obligation.

[00:59:00] Speaker 13:
So in the briefing, there was some disagreement about exactly what they were eligible for.

[00:59:06] Speaker 13:
My understanding is that it sounded like one of them actually delivered babies.

[00:59:20] Speaker 13:
So I'm just, I just want to make sure how much of this airlifting is because of something that, how much of it is because something that they just don't provide and it can get better.

[00:59:32] Speaker 13:
You know in Montana they got sent to Salt Lake all the time as I recall.

[00:59:35] Speaker 13:
Maybe Billings but probably Salt Lake.

[00:59:37] Speaker 05:
I thought my understanding was that

[01:00:12] Speaker 13:
life of an unborn child.

[01:00:15] Speaker 05:
So the problem is that PPROM, for example, is not always fatal.

[01:00:20] Speaker 05:
As you said, one of the patients ultimately was able to deliver, fortunately, twins who had PPROM.

[01:00:27] Speaker 05:
And for that reason, the physician treating that patient could not say that termination was necessary to prevent the death of the mother.

[01:00:35] Speaker 05:
It certainly wasn't, right?

[01:00:36] Speaker 05:
Exactly right.

[01:00:37] Speaker 05:
And it isn't always.

[01:00:38] Speaker 05:
And the problem with the conflict between these two is that the argument is if

[01:00:42] Speaker 13:
if the mother wants to kill the baby even though it's not necessary to prevent, then they have to be airlifted.

[01:00:48] Speaker 05:
Is that?

[01:00:50] Speaker 05:
So the airlifting was occurring because what happened is the patient would come in with, let's say, an infection, the membranes were ruptured and there are signs of infection, elevated white blood count, fever, and so on.

[01:01:02] Speaker 05:
The physician says, I would recommend at this point terminating

[01:01:10] Speaker 05:
Although I do detect a heartbeat at this moment.

[01:01:12] Speaker 05:
And the problem is, I cannot say right now that termination is necessary to prevent your death.

[01:01:17] Speaker 05:
Under Idaho law, I would be subjected to criminal prosecution if I were to terminate your pregnancy.

[01:01:23] Speaker 05:
But you should be transferred to a hospital right now where the full range of stabilizing care is available to you.

[01:01:29] Speaker 05:
And if the injunction were in place, I would actually be able to provide that care to you.

[01:01:40] Speaker 04:
The fact that it talks about stabilizing both the mother and the unborn child

[01:01:56] Speaker 05:
is our interpretation is the same as the United States, that the obligation to provide stabilizing care runs to the individual, and the individual in that situation is the mother.

[01:02:04] Speaker 05:
But it says to both, though.

[01:02:06] Speaker 05:
Well, it says to the individual, and it does reference the unborn child.

[01:02:11] Speaker 05:
The other point I would make is that in most of these situations

[01:02:18] Speaker 13:
that there is no obligation to stabilize an unborn child like let's assume that the mother was not was not at risk but came in and the child is at risk that there's no obligation on their own toilet to stabilize the unborn child so they could just kick the mom out and say go back when you start having issues no the the obligation the obligation to treat the individual doesn't go away because

[01:02:46] Speaker 05:
risk is to the unborn child in that situation.

[01:02:49] Speaker 05:
But the most, the sort of important situ- I think that's what Congress was trying to do in amending the statute.

[01:02:54] Speaker 05:
The important thing to understand here though is in almost all of these scenarios there is no stabilizing care that is available that can save a fetus where the mother has experienced premature rupture of her membranes.

[01:03:05] Speaker 05:
In other words, there is no stabilizing care that could

[01:03:09] Speaker 05:
could be provided because there is not going to be sufficient fluid for the fetus to develop into a baby.

[01:03:14] Speaker 05:
And these are occurring at 19 weeks, 20 weeks.

[01:03:17] Speaker 05:
It's not a viable fetus.

[01:03:19] Speaker 05:
There is a heartbeat.

[01:03:19] Speaker 05:
So the Idaho law makes it a crime to terminate.

[01:03:22] Speaker 05:
But it's not a situation where the fetus is going to develop and be able to be delivered.

[01:03:26] Speaker 05:
And if the fetus can develop and be delivered, that would be what the hospital would do in that situation.

[01:03:33] Speaker 13:
And you don't really plan for the Idaho Supreme Court decision as sort of a

[01:03:36] Speaker 13:
making clear that in that situation where the unborn child is not viable, that Idaho's law doesn't criminalize that.

[01:03:47] Speaker 05:
That's right, Your Honor, because the statute says what it says.

[01:03:50] Speaker 05:
The court in that case didn't say that if there's a heartbeat, but eventually the fetus is going to pass, that the doctor is absolved from criminal risk in that situation.

[01:04:08] Speaker 11:
Where does that leave your client?

[01:04:11] Speaker 05:
Well, my client would either have to bring a case of its own, intervene, or would be faced with the circumstance when the injunction was paid unless the court finds for some reason that the injunction can endure.

[01:04:28] Speaker 05:
But I agree that that's a troubling scenario in front of us.

[01:04:34] Speaker 00:
So the unborn child language was added in the 1989 amendments to EMTALA and it was responding to situations where the hospitals were turning away patients where the fetus but not the woman's health was in danger.

[01:04:48] Speaker 00:
And so the statute does discuss, you know, the risk to the individual and in the case

[01:04:54] Speaker 00:
case of labor to the unborn child three times.

[01:04:58] Speaker 00:
And then one says, placing the health of the individual or with respect to a pregnant woman, the health of the woman or her unborn child.

[01:05:05] Speaker 00:
So I don't see in the statutory text the and language that's been referred in some of the questions to you.

[01:05:14] Speaker 00:
So it seems like the statutory text is consistent with that legislative history of

[01:05:19] Speaker 00:
situation where patients were being turned away, where the fetus but not the woman's health was in danger.

[01:05:26] Speaker 04:
I agree with you, Your Honor, yes.

[01:05:28] Speaker 04:
I don't really see how that follows though from the text of the statute because when you read it, it talks about placing the health of the individual or with respect to a pregnant woman, the health of the woman or her unborn child.

[01:05:40] Speaker 04:
Clearly the obligation

[01:05:51] Speaker 04:
the other is an extremely difficult question, but the real question is whether the statute has anything to say about that question or whether it defaults to the states.

[01:05:59] Speaker 05:
Well, so we think the statute does require providing stabilizing care where it can prevent material deterioration.

[01:06:10] Speaker 05:
these two laws conflict in general, the stabilizing care can stop material deterioration of the mother's condition, but it can't do anything for the fetus because the membranes are ruptured and the fetus is not going to survive.

[01:06:22] Speaker 05:
Thank you.

[01:06:30] Speaker 15:
I'd like to address two matters in rebuttal.

[01:06:32] Speaker 15:
The first is to address a question that judges Forrest, Miller, Brass, and Van Dyke raised, which is who decides what treatment can be provided.

[01:06:42] Speaker 15:
And that's a legal question that doesn't require any factual development.

[01:06:47] Speaker 15:
And there's seven things that you should look at.

[01:06:50] Speaker 15:
The Medicare Act's very first provision forbids the federal government from controlling the practice of medicine.

[01:06:55] Speaker 15:
Judge Brass, I believe you made that point.

[01:06:57] Speaker 15:
Second, 1395, double D, B1A says that you must provide treatments available at the hospital.

[01:07:04] Speaker 15:
If state law prohibits something, it's not available there.

[01:07:07] Speaker 15:
Third, section 1320, small C.

[01:07:21] Speaker 00:
And in this section that is exclusively about abortion, the sections are state opt-out of abortion coverage, special rules relating to coverage of abortion services,

[01:07:36] Speaker 00:
about abortion, and the last subsection says nothing in this Act shall be construed to relieve any healthcare provider from providing emergency services as required by state or federal law, popularly known as EMTALA, including Section 1867 of the Social Security Act.

[01:07:53] Speaker 00:
So if there's an entire section that is exclusively about abortion and it ends with the language, nothing in the Act shall be construed to relieve any provider from providing emergency services

[01:08:05] Speaker 00:
consistent with MTALA, where is the ambiguity here?

[01:08:10] Speaker 00:
Isn't that consistent with evidence that the hospitals and the physicians understood that in a narrow set of circumstances, termination or pregnancy might be necessary?

[01:08:19] Speaker 15:
No, Judge Cope, because subsection C of that same section you're looking at says that we should not construe the Affordable Care Act to preempt state laws about abortion procedural requirements.

[01:08:28] Speaker 15:
For example, that you can't perform an abortion unless the mother's life is in danger.

[01:08:31] Speaker 15:
That directly addresses that.

[01:08:34] Speaker 15:
a list of reasons saying who decides.

[01:08:37] Speaker 15:
Section 1320 small c-a6 says that EMTALA is enforced in conformity with state norms of care, not doctor's personal judgment, as my friend suggested.

[01:08:48] Speaker 15:
Every single circuit, all one through 11, says that...

[01:09:02] Speaker 15:
for a couple of reasons.

[01:09:03] Speaker 15:
First, every day that the injunction is placed, it harms Idaho sovereignty, it harms women, and it harms the very unborn children that Idaho law and EMTALA are both supposed to protect, that whole discussion about the colloquy about the unborn child.

[01:09:16] Speaker 15:
EMTALA is supposed to be protecting them, but this injunction prevents that from happening.

[01:09:21] Speaker 15:
So waiting is untenable.

[01:09:23] Speaker 15:
In addition to that, the spending clause question, the cause of action question, and

[01:09:29] Speaker 15:
We don't need factual development.

[01:09:30] Speaker 15:
We don't need Judge Windmill to consider any of this.

[01:09:33] Speaker 15:
It's here before you now.

[01:09:35] Speaker 15:
You should decide it.

[01:09:36] Speaker 15:
If I could just briefly finish ticking through the questions.

[01:09:54] Speaker 15:
says that hospitals must assure their personnel are licensed or meet other applicable standards required by state or local law.

[01:10:00] Speaker 15:
That includes the ethic obligations that Judge Van Dyke was talking about.

[01:10:03] Speaker 15:
The CMS State Operations Manual, which they point to, it says available in the statute means the scope of the doctor's professional license.

[01:10:10] Speaker 15:
Again, Judge Van Dyke, that's the point you are making.

[01:10:12] Speaker 15:
They give us a hundred and fifteen thousand examples where I'm tall it was enforced against hospitals and doctors Not a single one involves a hospital cited for not providing treatment that state law prohibits.

[01:10:22] Speaker 15:
I mean that that should be dispositive And then finally with respect to that or judge co in section 1395 DDE one a small one This is defining medical condition for purposes of the of double the b1a's duty to stabilize the medical condition and then it defines that medical condition with respect to an

[01:10:42] Speaker 15:
individual as including the woman or her unborn child in that context, as Judge Bress was indicating, or means and.

[01:10:49] Speaker 15:
So in short- Thank you very much.

[01:10:51] Speaker 02:
Thank you, Your Honors.

[01:10:51] Speaker 02:
I really appreciate it.

[01:10:52] Speaker 02:
I want to take a moment and thank you, Mr. Burch and Ms.

[01:10:55] Speaker 02:
Meehan, Ms.

[01:10:57] Speaker 02:
Carroll, Ms.

[01:10:57] Speaker 02:
Harrison.

[01:10:58] Speaker 02:
I know this is a very difficult and challenging case, and really appreciate very much the arguments presented here today.

[01:11:06] Speaker 02:
And I want to express my gratitude to you.