FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         SEP 28 2023
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        Nos. 23-35440
                                                      23-35450
                Plaintiff-Appellee,
                                                 D.C. No. 1:22-cv-00329-BLW
 v.

STATE OF IDAHO,                                  ORDER

                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.

Before: Bridget S. Bade, Kenneth K. Lee, and Lawrence VanDyke, Circuit
Judges.

                              Order by Judge VanDyke

      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.” 

 (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. 

.

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.” 

. 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.” 

(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, cause the death of the unborn child,” except

in a few listed circumstances. 

.


                                          2
      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


                                           3
other parties interested in the proceeding; and (4) where the public interest lies.”

Nken v. Holder, 

 (2009) (quoting Hilton v. Braunskill, 

 (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. 

. 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


                                           4
of the legislation.” Cipollone v. Liggett Grp., Inc., 

 (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 U.S.C. § 1395dd(f) (emphases

added); see also Baker v. Adventist Health, Inc., 

 (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, 

 (9th Cir. 1993)

(citations omitted).

      As this court has recognized, when determining the preemptive effect of

EMTALA “[t]he key phrase is ‘directly conflicts.’” 

 Direct conflicts occur in

only two instances. First, when compliance with both is a “physical impossibility.”

 (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 

, 142–43

(1963)); see also McClellan v. I-Flow Corp., 

 (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, 

 (quoting




                                         5
Hines v. Davidowitz, 

 (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, 

 (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 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, 

 (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



                                            6
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.

      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


                                           7
statutory scheme. See Baker, 

. 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, 

 (1996) (quoting Rice v. Santa Fe Elevator

Corp., 

 (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, 

 (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, 

 (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.


                                         8
      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.” 

.

      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 attempting


                                           9
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,

, 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. 

 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. 

 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


                                          10
death, or any other particular probability level. 

 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 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 

 (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. 

. So this objection, too, has been superseded

by events.




                                         11
      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.

      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. 

. 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, 

 (2000) (alterations and internal quotation marks



                                          12
omitted) (quoting Hines, 

). “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 ….” 

 (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, 

. 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, 

 (“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, 

 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


                                          13
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, 

 (2012) (alterations in original) (quoting New Motor

Vehicle Bd. of Cal. v. Orrin W. Fox Co., 

 (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.

         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. 

 And the State


                                           14
“is free to ‘empower multiple officials to defend its sovereign interests in federal

court.’” Berger v. N.C. State Conf. of the NAACP, 

 (2022)

(alteration omitted) (quoting Cameron v. EMW Women’s Surgical Ctr., P.S.C., 

, 1011 (2022)). Here, Idaho law empowers the Legislature as a state

entity to represent those interests. See 

. 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, 

 (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.” 

 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 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


                                          15
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. 

.

      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


                                          16
State’s public interest in self-governance free from unwarranted federal interference.

See BST Holdings, L.L.C. v. OSHA, 

 (5th Cir. 2021) (“The public

interest is also served by maintaining our constitutional structure[.]”); Sierra Club v.

Trump, 

 (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

(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.


                                          17
        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 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.




                                         18