The Labor Divide: EMTALA's Preemptive Effect on State Abortion Restrictions

Soon after the Supreme Court overturned Roe v. Wade and the constitutional right to an abortion, the Biden administration began looking toward existing federal statutes as a means to preempt state abortion restrictions. One such statute, the Emergency Medical Treatment & Labor Act (EMTALA), sets mandatory standards of emergency care that hospitals throughout the country must provide. Since the Center for Medicare and Medicaid Services (CMS) released guidance (Guidance) interpreting EMTALA to preempt certain state-level restrictions on emergency abortions, there has been brewing disagreement among courts and agencies analyzing the issue. Texas v. Becerra exemplifies this disagreement. There, the court disagreed with the Guidance, finding that EMTALA did not preempt Texas's newly recently abortion law. Using the Guidance and Becerra as a frame, this Comment presents a new interpretation of how EMTALA applies to the abortion context. Looking at both the original 1986 statute and a set of amendments in 1989, the Comment shows that EMTALA's preemptive effect differs depending on whether a pregnant woman has gone into labor or not. This "labor divide" is deeply ingrained in EMTALA's structure, text, and purpose, offering a foundation for a comprehensive framework determining what the statute requires across a variety of state-law restrictions and pregnancy-related emergency scenarios.