Dumping the “Anti-Dumping” Law: Why EMTALA Is (Largely) Unconstitutional and Why It Matters

Abstract

EMTALA—the Emergency Medical Treatment and Active Labor Act requiring hospital emergency departments to screen and stabilize emergency patients, regardless of ability to pay— has played a pivotal and peculiar role in American health care, as the only assured access to care for millions of people. Curiously, although EMTALA imposes enormous costs on hospitals, neither the Supreme Court nor any circuit courts have addressed its constitutionality. This Article argues that, particularly in the paradigm case of an indigent patient at a for-profit hospital, EMTALA violates the Fifth Amendment’s Takings Clause: the government takes property for public use without just compensation. All the elements of a taking are readily established: property, taking, and public use. Here, the property is not the hospital as such—this is not a case of land use regulation. Rather, the hospital is the “person” from whom property is taken, including: [1] personal property such as costly pharmaceuticals, medical devices, and paid staff time; and [2] physical invasion of spaces such as the emergency room, operating suites, and intensive care beds. Such destruction or transfer of personal property and invasion of physical spaces constitute per se takings. Regulatory takings analysis, ordinarily invoked for regulating real property, is inapplicable. These takings’ public use is to ensure immediate emergency care, regardless of ability to pay. All three elements of a taking are thus satisfied. As this Article further argues, EMTALA’s broad economic coercion of hospitals cannot be justified as simply a condition of participation in Medicare. In the end, the problem is not that EMTALA mandates takings, but rather that it fails to provide adequately for just compensation. For-profit hospitals often receive no compensation whatever. Even not-for-profit hospitals can quickly cross the threshold from “compensated” (e.g., via tax exemption) into uncompensated care. Where compensation is insufficient, EMTALA’s takings are unconstitutional. The substantial constitutional impairment of EMTALA could trigger an interesting predicament. Historically, EMTALA has been a “fig leaf” obscuring the nation’s less-than-universal access to care. After all, the uninsured can always go to the emergency room. Going forward, EMTALA may be an “enabler,” encouraging healthy people to forego insurance until they become ill. The Affordable Care Act (ACA) permits anyone, even those with preexisting conditions, to buy insurance at the same cost as anyone else and, although it mandates that everyone be insured, the “tax” for noncompliance is modest and not strongly enforceable. Refusal to buy insurance until after one is ill may thus be attractive because, after all, the emergency room cannot demand advance assurance of payment. If the cost of insurance thereby spirals out of control because too few healthy people buy it, the Fifth Amendment’s Takings Clause could actually salvage the ACA’s mandate. Although this Article neither endorses nor disparages the idea, the individual mandate could be re-cast as a constitutionally proper act of eminent domain: the “property” being taken is the citizen’s money; the “just compensation” is a health insurance policy; and the “public use” is to save private health insurance as Congress’ chosen avenue for broadening access to care. Perhaps most interestingly, the mandate as an exercise of eminent domain need not satisfy the Commerce Clause. Per a long line of Supreme Court rulings, acts of eminent domain need only satisfy the rational basis test.