United States of America v. State of Idaho

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STATE OF IDAHO,
Defendant,
v.
MIKE MOYLE, Speaker of the Idaho
House of Representatives; CHUCK
WINDER, President Pro Tempore of
the Idaho Senate; THE SIXTY-
SEVENTH IDAHO LEGISLATURE,
Proposed Intervenor-
Defendants,
Movants-Appellants.
Nos. 23-35440
23-35450
D.C. No. 1:22-cv-
00329-BLW
ORDER
Filed September 28, 2023
Before: Bridget S. Bade, Kenneth K. Lee, and Lawrence
VanDyke, Circuit Judges.
Order by Judge VanDyke

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SUMMARY*
Stay / Abortion / Preemption
The panel granted the Idaho Legislature’s motion to stay,
pending appeal, the district court’s order preliminarily
enjoining Idaho Code section 18-622, which makes it a
crime for a healthcare provider to perform an abortion
unless, among a few other exceptions, “the physician
determine[s], in his good faith medical judgment and based
on the facts known to the physician at the time, that the
abortion was necessary to prevent the death of the pregnant
woman.”
The federal government argued that section 622 was
preempted by the Emergency Medical Treatment and Labor
Act (EMTALA), which was enacted to ensure that the poor
and uninsured receive emergency medical care at hospitals
receiving Medicare reimbursement, and requires emergency
room doctors to stabilize patients’ emergency medical
conditions before transferring them. The district court
granted the federal government’s motion for a preliminary
injunction.
The panel considered the factors set forth in Nken v.
Holder, 556 U.S. 418, 434 (2009), in considering the Idaho
Legislature’s request for a stay of the district court’s
injunction, and held that each of the factors favored issuing
a stay.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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USA V. M OYLE 3
First, the Legislature made a strong showing that it
would succeed on the merits because EMTALA does not
preempt section 622. The panel rejected the federal
government’s assertion that it is impossible to comply with
both EMTALA and section 622. And even if the federal
government were right that EMTALA requires abortions in
limited circumstances, EMTALA would not require those
abortions that are punishable by section 622 because
termination of a pregnancy is not punishable under section
622 when a doctor determines that an abortion is necessary
to save the life of the mother. Nor do section 622’s
limitations on abortion services pose an obstacle to the
purpose of EMTALA because they do not interfere with the
provision of emergency medical services to indigent
patients.
Second, Idaho will be irreparably injured absent a stay
because the preliminary injunction directly harms Idaho’s
sovereignty.
Finally, the balance of the equities and the public interest
support a stay to ensure Idaho’s right to enforce its
legitimately enacted laws during the pendency of the State’s
appeal.

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ORDER
In Dobbs v. Jackson Women’s Health Organization, the
Supreme Court “heed[ed] the Constitution and return[ed] the
issue of abortion to the people’s elected representatives.”
142 S. Ct. 2228, 2243 (2022). After Dobbs, a number of
states, including Idaho, have exercised that prerogative to
enact abortion restrictions. In response, the federal
government has sued Idaho claiming that a federal law
unrelated to abortion preempts the will of the people of that
state, through their elected representatives, to “protect[] fetal
life,” as Dobbs described it. Id. at 2261. Because there is no
preemption, the Idaho Legislature is entitled to a stay of the
district court’s order improperly enjoining its duly enacted
statute.
BACKGROUND
In 2020, Idaho passed section 622, which prohibits most
abortions in the state. See S.B. 1385, 65th Leg., 2d Reg.
Sess. (Idaho 2020). The law contained a trigger, meaning
that it was only to take effect thirty days after judgment was
entered “in any decision of the United States supreme court
that restores to the states their authority to prohibit abortion.”
2020 Idaho Sess. Laws 827. The law makes it a crime for a
healthcare provider to perform an abortion unless, among a
few other exceptions, “[t]he physician determine[s], in his
good faith medical judgment and based on the facts known
to the physician at the time, that the abortion was necessary
to prevent the death of the pregnant woman.” Idaho Code
§ 18-622(2)(a)(i). Idaho law defines abortion as “the use of
any means to intentionally terminate the clinically
diagnosable pregnancy of a woman with knowledge that the
termination by those means will, with reasonable likelihood,

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USA V. M OYLE 5
cause the death of the unborn child,” except in a few listed
circumstances. Idaho Code § 18-604.
Dobbs triggered section 622, after which the federal
government challenged Idaho’s law, arguing that it is
preempted by the Emergency Medical Treatment and Labor
Act, 42 U.S.C. § 1395dd (EMTALA). EMTALA was
enacted to prevent hospitals that receive Medicare
reimbursement from refusing to provide emergency care to
the indigent because of their inability to pay. Id. As relevant
to this case, it requires emergency room doctors to stabilize
patients’ emergency medical conditions before transferring
them. The federal government moved for a preliminary
injunction to stop Idaho’s law from taking full effect on the
trigger date following Dobbs. The district court granted the
preliminary injunction in August 2022 and denied
reconsideration in May 2023. Both the State of Idaho and
the Idaho Legislature, which was allowed to intervene for
purposes of the preliminary injunction, have appealed the
district court’s decision. The Legislature has also moved for
a stay of the injunction pending appeal. Because Idaho’s law
is not preempted by EMTALA and the equitable factors
favor a stay, we grant the Legislature’s motion to stay this
case pending appeal.
DISCUSSION
We consider four factors when considering a request for
a stay of a district court’s injunction: “(1) whether the stay
applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.” Nken

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v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v.
Braunskill, 481 U.S. 770, 776 (1987)).
Each of the four Nken factors favors issuing a stay here.
The Legislature has made a strong showing that EMTALA
does not preempt section 622. EMTALA does not require
abortions, and even if it did in some circumstances, that
requirement would not directly conflict with section 622.
The federal government will not be injured by the stay of an
order preliminarily enjoining enforcement of a state law that
does not conflict with its own. Idaho, on the other hand, will
be irreparably injured absent a stay because the preliminary
injunction directly harms its sovereignty. And the balance
of the equities and the public interest also favor judicial
action ensuring Idaho’s right to enforce its legitimately
enacted laws during the pendency of the State’s appeal.
I. The Legislature Has Made a Strong Showing
That It Is Likely to Succeed on the Merits.
Under Nken, a stay applicant must make a “strong
showing” that it is likely to succeed on the merits. 556 U.S.
at 434. This threshold is met because EMTALA does not
preempt section 622.
“When Congress has considered the issue of preemption
and has included in the enacted legislation a provision
explicitly addressing that issue … there is no need to infer
congressional intent to preempt state laws from the
substantive provisions of the legislation.” Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 517 (1992) (alterations,
internal quotation marks, and citations omitted). EMTALA
contains an express provision stating that “[t]he provisions
of this section do not preempt any State or local law
requirement, except to the extent that the requirement
directly conflicts with a requirement of this section.” 42

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U.S.C. § 1395dd(f) (emphases added); see also Baker v.
Adventist Health, Inc., 260 F.3d 987, 993 (9th Cir. 2001)
(“The statute expressly contains a non-preemption provision
for state remedies.” (citing § 1395dd(f))). Because this court
looks to “[c]ongressional intent [as] the sole guide in
determining whether federal law preempts a state statute,”
we must look “only to this language and construe
[EMTALA’s] preemptive effect as narrowly as possible.”
Draper v. Chiapuzio, 9 F.3d 1391, 1393 (9th Cir. 1993)
(citations omitted).
As this court has recognized, when determining the
preemptive effect of EMTALA “[t]he key phrase is ‘directly
conflicts.’” Id. Direct conflicts occur in only two instances.
First, when compliance with both is a “physical
impossibility.” Id. (quoting Fla. Lime & Avocado Growers,
Inc. v. Paul, 373 U.S. 132, 142–43 (1963)); see also
McClellan v. I-Flow Corp., 776 F.3d 1035, 1039 (9th Cir.
2015). And second, when the state law is “an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Chiapuzio, 9 F.3d at 1393 (quoting
Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). In this case,
neither type of conflict exists.
A. It Is Not Impossible to Comply with Both
EMTALA and Section 622.
EMTALA was enacted to ensure that the poor and
uninsured receive emergency medical care at hospitals
receiving Medicare reimbursement. See Arrington v. Wong,
237 F.3d 1066, 1069 (9th Cir. 2001). It provides certain
procedures that hospitals must follow but does not set
standards of care or specifically mandate that certain
procedures, such as abortion, be offered. But even assuming
that EMTALA did require abortions in certain, limited

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circumstances, it would not require abortions that are
punishable by section 622. So it still would not be
impossible to comply with both EMTALA and section 622.
In interpreting a statute, we must “start with the statutory
text.” Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020). The text
of EMTALA shows that it does not require hospitals to
perform abortions. Instead, EMTALA requires a hospital to
determine whether an emergency medical condition is
reasonably expected to place “the health of the individual
(or, with respect to a pregnant woman, the health of the
woman or her unborn child) in serious jeopardy, serious
impairment to bodily functions, or serious dysfunction of
any bodily organ or part.” 42 U.S.C. § 1395dd(e)(1)(A)
(omissions removed) (emphasis added). So an emergency
medical condition includes one that “plac[es] the health of
the … unborn child[] in serious jeopardy.” Id. Where such
a condition exists, the hospital must stabilize the condition
before transferring the individual to another medical facility
unless certain conditions are met. Id. § 1395dd(b)(1). “[T]o
stabilize” means “to provide such medical treatment of the
condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the
condition is likely to result from or occur during the transfer
of the individual from a facility.” Id. § 1395dd(e)(3)(A).
EMTALA therefore has dual stabilization requirements:
hospitals must ensure that “no material deterioration of the
condition” of a woman or her unborn child is likely to occur.
The assumption that EMTALA implies some hierarchy
when stabilization of the woman might require “a material
deterioration of the condition” of the child requires us to read
in an implicit duty to perform abortions from the explicit
duty to stabilize, which is far beyond that required for a
direct conflict.

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USA V. M OYLE 9
The federal government nonetheless argues that because
hospitals are required to stabilize patients’ medical
conditions, they must perform abortions because abortion
could be a “form of stabilizing treatment.” But EMTALA
does not require the State to allow every form of treatment
that could conceivably stabilize a medical condition solely
because, as the government argues, a “relevant professional
determines such care is necessary.” In fact, EMTALA does
not impose any standards of care on the practice of medicine.
Nor could it within the broader statutory scheme. See Baker,
260 F.3d at 993. It certainly doesn’t require that a hospital
provide whatever treatment an individual medical
professional may desire. For example, a medical
professional may believe an organ transplant is necessary to
stabilize a patient’s emergency medical condition, but
EMTALA would not then preempt a state’s requirements
governing organ transplants.
Because Congress’s “clear and manifest” purpose
confirms that EMTALA does not impose specific methods
of “stabilizing treatment,” we must assume “that the historic
police powers of the States [are] not to be superseded by”
EMTALA. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)). The purpose of EMTALA is “to prevent
hospitals [from] dumping indigent patients by either refusing
to provide emergency medical treatment or transferring
patients before their conditions were stabilized.” Arrington,
237 F.3d at 1069 (alternations, internal quotation marks, and
citation omitted). The purpose of EMTALA is not to impose
specific standards of care—such as requiring the provision
of abortion—but simply to “ensure that hospitals do not
refuse essential emergency care because of a patient’s
inability to pay.” Eberhardt v. City of Los Angeles, 62 F.3d

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1253, 1258 (9th Cir. 1995). To read EMTALA to require a
specific method of treatment, such as abortion, pushes the
statute far beyond its original purpose, and therefore is not a
ground to disrupt Idaho’s historic police powers.
Even if the federal government were correct that
EMTALA requires abortions as “stabilizing treatment” in
limited circumstances, EMTALA still would not conflict
with Idaho’s law. Section 622 includes an exception
allowing abortion when a “physician determine[s], in his
good faith medical judgment and based on the facts known
to the physician at the time, that the abortion [is] necessary
to prevent the death of the pregnant woman.” Idaho Code
§ 18-622.
The district court concluded that there is a gap between
what a doctor might believe necessary to save the life of a
pregnant woman and what might be reasonably expected to
place the health of her or her unborn child in serious
jeopardy, seriously impair their bodily functions, or cause
serious dysfunction of any bodily organ or part.
Specifically, the district court invoked the supposed
ambiguity in Idaho’s law to construe it as creating a conflict
with EMTALA. But almost all the examples in the district
court’s parade-of-horribles are no longer true, given the
Idaho Legislature’s recent amendment to the statute and
clarification from the Supreme Court of Idaho.
First, relying on declarations from certain doctors, the
district court repeatedly noted that the Idaho law’s ambiguity
would interfere with doctors’ medical judgment. For
example, it held that “against the backdrop of these
uncertain, medically complex situations, [the statutory
exception] is an empty promise—it does not provide any
clarity.” It added that it “offers little solace to physicians

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USA V. M OYLE 11
attempting to navigate their way around both EMTALA and
Idaho’s criminal abortion laws” and that “Idaho law
criminalizes as an ‘abortion’ what physicians in emergency
medicine have long understood” as required to save lives.
But after the district court issued its injunction, the
Supreme Court of Idaho authoritatively interpreted this state
law provision as providing a broad, subjective standard
requiring the doctor, in his or her good faith medical
judgment, to believe it necessary to terminate the pregnancy.
Planned Parenthood Great Nw. v. Idaho, 522 P.3d 1132,
1203 (Idaho 2023). Put another way, the Supreme Court of
Idaho clarified that the text of the exception means what it
says: if a doctor subjectively believes, in his or her good faith
medical judgment, that an abortion is necessary to prevent
the death of the pregnant woman, then the exception applies.
Id. Thus, the district court’s reliance on declarations from
certain doctors claiming that the law would undermine their
medical judgment is no longer valid.
Second, the district court also relied on some of the
federal government’s experts who argued that Idaho doctors
could not terminate a pregnancy while complying with
section 622 because they could not be certain that an
abortion is necessary. But the Supreme Court of Idaho has
made clear that “certainty” is not the standard under Idaho
law. That Court also held that the standard has no
imminency requirement. Id. at 1203–04. It explicitly held
that the “necessary to save the life of the mother” standard
does not require certainty, a substantial risk of death, or any
other particular probability level. Id. Nor is a “medical
consensus on what is necessary to prevent the death of the
woman … required ….” Id. at 1204 (internal quotation
marks omitted). As the Supreme Court of Idaho put it, “[t]he
plain language of the [exception] leaves wide room for the

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physician’s ‘good faith medical judgment’ on whether the
abortion was ‘necessary to prevent the death of the pregnant
woman’ based on those facts known to the physician at that
time.” Id. at 1203.
Third, the district court heavily relied on ectopic
pregnancies—mentioning them eleven times in the
opinion—as a justification for finding section 622 in direct
conflict with EMTALA. But Idaho recently amended its law
to clarify that “the removal of an ectopic or molar
pregnancy” is not an abortion. See 2023 Idaho Sess. Laws
906 (excluding from the statute’s definition of “abortion”).
So that issue is now moot.
Fourth, the district court emphasized that the life of the
mother exception in the statute was technically an
affirmative defense, noting that an “affirmative defense is an
excuse, not an exception” and that this “difference is not
academic.” But Idaho amended the law to make it a statutory
exception, not an affirmative defense. 2023 Idaho Sess.
Laws 908. So this objection, too, has been superseded by
events.
Given the statutory amendments and the Supreme Court
of Idaho’s recent decision, any ambiguity identified by the
federal government and the district court no longer exists: if
a doctor believes, in his or her good faith medical judgment,
that an abortion is necessary to save the life of the mother,
then the exception applies. Neither the probability nor the
imminency of death matters to the exception’s application.
Id. at 1203. For all the hypotheticals presented by the district
court, the conduct required by EMTALA has been shown to
satisfy section 622’s “life of the mother” standard, so the two
laws would not conflict even if EMTALA actually required
abortions.

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USA V. M OYLE 13
In sum, when a doctor determines an abortion is
necessary to save the life of the mother, termination of a
pregnancy is not punishable by section 622. Idaho Code
§ 18-622. Therefore, even if the federal government were
right that EMTALA requires abortions in certain limited
circumstances, EMTALA would not require abortions that
are punishable by section 622. The federal government is
thus wrong when it asserts that it is impossible to comply
with both EMTALA and section 622.
B. Section 622 Does Not Pose an Obstacle to the
Purpose of EMTALA.
Obstacle preemption occurs when, “under the
circumstances of a particular case, the challenged state law
stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.” Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000)
(alterations and internal quotation marks omitted) (quoting
Hines, 312 U.S. at 67). “What is a sufficient obstacle is a
matter of judgment, to be informed by examining the federal
statute as a whole and identifying its purpose and intended
effects ….” Id. (emphasis added).
As relevant here, “Congress enacted EMTALA to
respond to the specific problem of hospital emergency rooms
refusing to treat patients who were uninsured or who could
otherwise not pay for treatment.” Baker, 260 F.3d at 993.
EMTALA was “not intended to create a national standard of
care for hospitals or to provide a federal cause of action akin
to a state law claim for medical malpractice.” Id.; see also
Eberhardt, 62 F.3d at 1258 (“The statutory language of the
EMTALA clearly declines to impose on hospitals a national
standard of care in screening patients.”). This conclusion is
“[c]onsistent with the statutory language” of EMTALA, id.,

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under which the duty to stabilize is “to provide such medical
treatment of the condition as may be necessary to assure,
within reasonable medical probability, that no material
deterioration of the condition is likely to result from or occur
during the transfer of the individual from a facility ….” 42
U.S.C. § 1395dd(e)(3)(A). Under the language of
EMTALA, Congress left it to state healthcare standards to
determine which course of treatment “may be necessary” to
prevent “material deterioration ….” See id.
It is not the purpose of EMTALA to force hospitals to
treat medical conditions using certain procedures. Instead,
EMTALA seeks to prevent hospitals from neglecting poor
or uninsured patients with the goal of protecting “the health
of the woman” and “her unborn child.” 42 U.S.C.
§ 1395dd(e)(1)(A). Section 622’s limitations on abortion
services do not pose an obstacle to EMTALA’s purpose
because they do not interfere with the provision of
emergency medical services to indigent patients.
II. The Legislature Has Shown Irreparable Harm
Absent a Stay.
“[A]ny time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people,
it suffers a form of irreparable injury.” Maryland v. King,
567 U.S. 1301, 1303 (2012) (alterations in original) (quoting
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1977)). The district court’s injunction prevents
Idaho from enforcing section 622 as enacted by
representatives of its people, so the State easily meets its
burden of showing irreparable harm. The federal
government’s two arguments to the contrary do not convince
us otherwise.

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USA V. M OYLE 15
First, the government argues that the Legislature cannot
establish irreparable harm by pointing to harm to the State of
Idaho itself. But it makes no difference to our harm analysis
that the State seeks the stay through its Legislature, rather
than through its Attorney General; the government’s
argument to the contrary relies upon a distinction without a
difference. The State itself, not merely its officials, “suffers
a form of irreparable injury” when it cannot effectuate its
statutes. Id. And the State “is free to ‘empower multiple
officials to defend its sovereign interests in federal court.’”
Berger v. N.C. State Conf. of the NAACP, 142 S. Ct. 2191,
2202 (2022) (alteration omitted) (quoting Cameron v. EMW
Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1011
(2022)). Here, Idaho law empowers the Legislature as a state
entity to represent those interests. See Idaho Code § 67-465.
The Legislature may thus invoke the State of Idaho’s
irreparable harm.
Second, the federal government claims that the
Legislature’s delay in requesting the stay is “substantial and
inexplainable,” and therefore prevents a showing of
irreparable harm. The record is somewhat mixed on this
issue, but usually “delay is but a single factor to consider in
evaluating irreparable injury.” Arc of Cal. v. Douglas, 757
F.3d 975, 990 (9th Cir. 2014). While “failure to seek judicial
protection can imply the lack of need for speedy action,”
here there is no evidence that the Legislature was “sleeping
on its rights.” Id. at 990–91 (internal quotation marks and
citation omitted).
It appears that the extended period of time after the
district court’s original injunction here is instead explained
primarily by the long time that court took in ruling on
Idaho’s reconsideration motions, together with other
circumstances outside the Legislature’s control. On

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September 7, 2022, only two weeks after the district court
granted the federal government’s injunction, the Legislature
moved for reconsideration. And in November 2022, it sent
a letter to the court requesting a ruling on the motion to
reconsider. In January 2023, three months after the federal
government responded to the reconsideration motion and
two months after the Legislature requested an expedited
ruling, the Supreme Court of Idaho issued a decision
authoritatively interpreting section 622. Idaho requested
leave to file supplemental briefing in federal court
addressing the Supreme Court of Idaho’s decision. The
district court took another three months after the
supplemental briefing was complete to decide the motion for
reconsideration; the Legislature was not at fault for these
delays. And the Legislature moved for a stay in the district
court on the same day it timely noticed its appeal of the
district court’s denial of its motion for reconsideration. We
cannot say that the Legislature was clearly dilatory in
defending the State’s rights. The record suggests that the
Legislature tried to protect those rights before the district
court before seeking a stay from this court.
III. The Balance of the Equities Favors a Stay.
The third and fourth Nken factors—“whether issuance of
the stay will substantially injure the other parties interested
in the proceeding” and “where the public interest lies”—also
favor a stay. 556 U.S. at 435.
Idaho enacted section 622 to effectuate that state’s strong
interest in protecting unborn life. That public interest is
undermined each day section 622 remains inappropriately
enjoined. Beyond that specific interest, improperly
preventing Idaho from enforcing its duly enacted laws and
general police power also undermines the State’s public

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USA V. M OYLE 17
interest in self-governance free from unwarranted federal
interference. See BST Holdings, L.L.C. v. OSHA, 17 F.4th
604, 618 (5th Cir. 2021) (“The public interest is also served
by maintaining our constitutional structure[.]”); Sierra Club
v. Trump, 929 F.3d 670, 677 (9th Cir. 2019) (public interest
is served by “respecting the Constitution’s assignment
of … power”).
The federal government points to no injury to itself
caused by Idaho’s law. Instead, relying on its merits
argument that Idaho’s law is preempted, it cites to cases
holding that “preventing a violation of the Supremacy
Clause serves the public interest.” But because Idaho’s law
is not preempted, those arguments do not help the federal
government.
Beyond that inapposite concern, the federal government
argues that a continued stay will result in public health
benefits for pregnant women needing emergency care, and
also benefit hospitals in neighboring states who would
otherwise be forced to treat women denied such care in
Idaho. But Idaho’s law expressly contemplates necessary
medical care for pregnant women in distress. See Idaho
Code § 18-622(4). So the federal government’s argument
that pregnant women will be denied necessary emergency
care overlooks Idaho law. And as explained above, even
assuming abortions were required to “stabilize” emergency
conditions presented by some pregnant women, and that
EMTALA required such treatment, Idaho’s law would not
prevent abortions in those circumstances.
Ultimately, given our conclusion that EMTALA does
not preempt Idaho’s law, the federal government has no
discernable interest in regulating the internal medical affairs
of the State, and the public interest is best served by

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preserving the force and effect of a duly enacted Idaho law
during the pendency of this appeal. Therefore, the balance
of the equities and the public interest support a stay in this
case.
CONCLUSION
For the above reasons, the traditional stay factors favor
granting the Legislature’s motion. The Legislature’s motion
for a stay pending appeal is therefore GRANTED.

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