Key Takeaways:

On April 24, 2024, the Supreme Court will hear the second case this term involving access to abortion: Idaho v. United States. At stake in this case is whether the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms, preempts state abortion laws and requires hospitals that accept Medicare to provide abortion care when it is necessary to stabilize a patient’s condition, even when this abortion care violates state law.

The state of Idaho has an abortion ban that only includes an exception to save the life of the pregnant person. It contends that EMTALA does not preempt its abortion ban because there is no conflict between the state and federal law since EMTALA requires physicians to do everything in their power to preserve the life of both the pregnant person and the fetus.

The Biden Administration maintains that EMTALA requires hospitals to provide stabilizing treatment, including abortion, to preserve the health of a pregnant person, not only in situations where abortion is the necessary treatment to save a patient’s life.

This case not only has implications for access to pregnancy-related emergency care, including abortion, but could also have ramifications for a pregnant person’s right to preserve their own health and clinicians’ autonomy to manage pregnancy-related medical emergencies based on accepted standards of care.

Introduction

On April 24, 2024, the Supreme Court will hear the second case this term involving access to abortion: Idaho v. United States, which has been consolidated with Moyle v. United States. At stake in this case is whether the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms, preempts state abortion laws and requires hospitals to provide abortion care when it is necessary to stabilize a patient’s condition, even when this abortion care violates state law. While all state abortion bans have an exception for pregnancies that jeopardize the life of a pregnant person, some do not have an exception that would allow an abortion to preserve the health of the pregnant person. Even in states with health exceptions, the exception might be very narrow and not well defined, leaving significant gaps in emergency medical care for pregnant people. EMTALA, however, requires that hospitals provide stabilizing care to patients with emergency medical conditions, including conditions that may harm their health. According to Department of Health and Human Services (HHS) guidance issued in the wake of the Dobbs decision, EMTALA requires hospitals to provide abortion care to pregnant patients with emergency medical conditions when abortion is necessary to stabilize the patient’s condition. The Court’s decision in this case could impact access to abortion in emergency situations across the country and potentially lay the foundation for future challenges involving state laws granting fetal personhood. This brief explains the arguments presented by Idaho and the Biden Administration in the lawsuit, the potential Supreme Court decisions, and the implications for pregnant people seeking emergency health care in states with abortion bans.

What Is EMTALA?

In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) to prevent hospitals from “dumping” or transferring uninsured patients to public hospitals without consideration of their condition or attempting to stabilize them before they were transferred. The law requires Medicare-participating hospitals – effectively all acute care hospitals – to perform an appropriate medical screening examination to any patient who presents to their dedicated emergency department. If a patient is identified as having an emergency medical condition, the hospital must provide stabilizing treatment within the hospital’s capability or transfer the patient to another medial facility that has the capabilities to provide treatment to stabilize the emergency medical condition.

The law defines an emergency medical condition as: “A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing 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 or with respect to a pregnant woman who is having contractions that there is inadequate time to effect a safe transfer to another hospital before delivery or that transfer may pose a threat to the health or safety of the woman or the unborn child.” The provisions about pregnant women and the unborn child were added to the Act in 1989 in response to reports of hospitals refusing to treat uninsured pregnant women in labor.

The law includes a section that states: “The 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.”

HHS, through its Office of the Inspector General (OIG), may impose a civil monetary penalty on a hospital ($119,942 for hospitals with over 100 beds, $59,973 for hospitals with under 100 beds per violation) or physician ($119,942 per violation). The HHS OIG may also exclude physicians from participating in Medicare and state health care programs if they are found to be violating EMTALA. Individuals who suffer personal harm as a direct result of a hospital’s violation may bring a civil action against the hospital and obtain personal injury damages.

What Guidance Has the Biden Administration Issued About EMTALA?

In September 2021, after Texas implemented its civil abortion ban SB 8, the Centers for Medicare and Medicaid Services (CMS) Center for Clinical Standards and Quality issued guidance titled, “Reinforcement of EMTALA Obligation specific to Patients who are Pregnant or are Experiencing Pregnancy Loss.” While this guidance does not state abortions must be provided if that is the necessary stabilizing treatment, it does state that: “A physician’s professional and legal duty to provide stabilizing medical treatment to a patient… preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment.”

As states were starting to implement abortion bans after the Dobbs decision, HHS issued guidance in July 2022 regarding the enforcement of EMTALA. The guidance clarifies that hospitals and physicians have obligations to provide stabilizing care, including abortion, if that is the necessary stabilizing treatment when a patient presenting at an emergency department is experiencing an emergency medical condition.

On January 22, 2024, the Biden Administration announced a broad plan to educate patients on their right to abortion services in emergency situations and hospitals on their obligation to provide those emergency services.

What Are the Legal Challenges?

After HHS issued their 2022 guidance, two lawsuits were filed in federal courts. The state of Texas sued HHS to block enforcement of the HHS guidance in Texas, arguing that EMTALA does not authorize the federal government to “compel” clinicians to provide abortion care. Texas was joined by religious anti-abortion physician organizations, which argue that the guidance infringes on their conscience rights in violation of the federal Religious Freedom Restoration Act (RFRA) by requiring them to provide abortion care in situations contrary to their beliefs. In another case, HHS sued the state of Idaho to block enforcement of its abortion ban to the extent it conflicts with EMTALA. The Idaho legislature subsequently intervened to defend the state law. These two cases have resulted in conflicting decisions in the federal district courts and the federal courts of appeal.

In the Idaho case, the federal district court concluded that because the Idaho law did not include exceptions for health or life, the law conflicted with EMTALA. At the time the district court considered the case, the Idaho law did not have an exception for situations that threatened the life or health of the pregnant person. The law only allowed physicians to assert a defense (see box below) to criminal prosecution if in their good faith medical judgment performing the abortion was “necessary to prevent the death of the pregnant woman.” Having an affirmative defense instead of an exception means that a physician could be prosecuted and then would need to assert their defense and would bear the burden of proof to demonstrate that they provided the care to save the patient’s life. The district court blocked Idaho from enforcing the abortion ban to the extent it conflicts with EMTALA while the litigation proceeded.

Exception vs. Affirmative Defense An “affirmative defense” allows someone charged with a crime to show in court that their conduct was permissible even though the action itself is illegal. An affirmative defense does not make it legal to provide abortion care in the situations delineated in the law. This means that a clinician who provided abortion care is more vulnerable to prosecution – regardless of the reason they provided an abortion – and bears the burden of proof to demonstrate that they provided care according to the conditions delineated as possible affirmative defenses in the abortion ban. In contrast, an exception makes it legal to provide abortion care in the situations delineated by the law and places the burden of proof on the state. Bans that rely on an affirmative defense make it legally riskier for physicians to provide abortion care in situations where the life or health of the pregnant person is at risk.

After the district court issued its decision, the Idaho legislature amended the law changing the affirmative defense to an exception for life. The law now imposes penalties on physicians who perform abortions unless “[t]he physician determined 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 State of Idaho and their legislature appealed to the 9th Circuit Court of Appeals, which initially reversed the district court’s ruling. Later, a full panel of judges from the 9th Circuit reinstated the district court’s ruling blocking the provisions of the law that conflict with EMTALA. Idaho and the Idaho Legislature appealed to the Supreme Court, which took the case and allowed the Idaho law to be fully enforced while the case proceeds.

The federal district court in Texas reached the opposite decision and blocked HHS from enforcing its EMTALA guidance, but only in Texas. The court highlighted that the HHS guidance states that abortion may be required for medical conditions that are likely to become emergent. Texas law requires that life-threatening physical conditions already be present for an abortion to be excepted from its abortion ban. The court concluded that Texas is likely to succeed on their claim that the HHS Guidance exceeds HHS’s statutory authority: “The Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child.” The court similarly sided with anti-abortion physician organizations on their conscience objections claims, stating that the guidance does not contain any exceptions for clinicians with sincerely held religious beliefs. However, the court did not rule definitively that a religious exemption is required under federal law. The Biden Administration contends that EMTALA requires hospitals, not individual doctors, to provide stabilizing care, and appealed this decision to the 5th Circuit Court of Appeals. The Court affirmed the lower court’s ruling blocking HHS from enforcing the abortion-related EMTALA guidance. On April 1, 2024, the Biden Administration appealed the 5th Circuit’s ruling to the Supreme Court, asking the Court to hold this case pending the outcome in the Idaho case and then apply that decision to this Texas case.

What Is the Supreme Court Considering?

The Supreme Court will consider whether EMTALA preempts Idaho’s abortion ban in situations in which terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health, but the state prohibits a physician from providing that care.

The Biden Administration’s position is that EMTALA preempts Idaho’s abortion ban when a pregnant person presents in an emergency room with a condition that threatens their health, and abortion is the standard of care to stabilize the patient. The Biden Administration contends the hospital must provide an abortion when that is the “necessary stabilizing treatment” to prevent lasting harms including sepsis, uncontrollable bleeding, kidney failure or loss of fertility. The Idaho abortion ban is in direct conflict with the requirement of EMTALA to provide stabilizing care and is therefore preempted by EMTALA. The Administration argues: “Many pregnancy complications do not pose a threat to the woman’s life when she arrives at the emergency room—but delaying care until necessary to prevent her death could allow her condition to deteriorate, placing her at risk of acute and long-term complications.” EMTALA creates an obligation to allow the pregnant person, not the fetus, to receive and proceed with treatment.

As evidence that Congress did not intend to exclude abortion care from EMTALA, the Administration highlights that although the Affordable Care Act (ACA) allows states to prohibit abortion in qualified health plans or refuse to include abortion as a covered essential health benefit, the ACA also states that “[n]othing in this Act shall be construed to relieve any health care provider from providing emergency services as required by State or Federal law, including… EMTALA.” The Administration maintains that EMTALA mentions a specific form of stabilizing treatment in one circumstance, when a pregnant woman is in labor and having contractions. “But by singling out ‘having contractions,’ EMTALA expands the definition of ‘emergency medical condition’ to include labor which otherwise might not satisfy the [law’s] definition and requires a particular treatment. In identifying a specific stabilizing treatment in that one instance, Congress did not override EMTALA’s general stabilization obligation – or preclude any other necessary stabilizing treatment.”

Idaho argues there is no conflict between EMTALA and Idaho’s Defense of Life Act because EMTALA requires physicians to do everything in their power to preserve the life of both the pregnant person and their fetus. Idaho maintains that EMTALA was enacted to ensure that hospitals do not “dump” uninsured patients, not to create any standards of care, and only requires hospitals to offer treatments to uninsured patients that are available to insured patients. The only form of stabilizing treatment expressly required by the statute is delivering a baby when a pregnant woman with contractions has an emergency medical condition. EMTALA treats an “unborn child” or fetus as a patient, and expressly requires that the fetus of a pregnant woman in labor be delivered.

Idaho contends that EMTALA does not preempt their abortion ban because EMTALA states that it preempts state law only when it contradicts the statute’s express requirements. Idaho further argues that Congress did not intend for EMTALA to preempt state regulation of health care. Idaho points to the Hyde Amendment as further evidence that Congress did not intend EMTALA to require abortion care. If the Biden Administration guidance is implemented, they argue, then hospitals will be required to provide abortions in cases where the hospital cannot use federal funds, as the abortions do not fall within a Hyde exception.

What Would Be the Impact of a Ruling in Favor of the Federal Government?

If the Supreme Court rules in favor of the Biden Administration, hospitals in states where abortion is banned or restricted will be required to provide abortion care in emergency situations to stabilize the health of a pregnant person or they will face monetary penalties (discussed above). This means that, in practice, pregnant patients will be able to obtain abortion care to stabilize their health in hospital emergency rooms throughout the country, even in states with an abortion ban that has only an exception to preserve the pregnant person’s life. This will give clinicians protections to provide this abortion care in states that ban or limit abortion without risking criminal or civil penalties. Many states with abortion bans either have no health exception or a very narrow health exception. In addition, many states do not defer to the doctor’s medical judgment that an abortion qualifies for an exception under state law, which has made clinicians hesitant to provide care that could later be prosecuted and reviewed by a court.

Idaho and other states with abortion bans claim that a ruling in favor of the federal government would limit their sovereign ability to regulate the practice of medicine. In addition, the Christian Medical and Dental Associations claim that the EMTALA guidance “imposes a substantial burden on the many healthcare professionals whose religious beliefs compel them not to participate in abortion”, forcing these physicians to pay a fine for following their sincerely held beliefs. The U.S. Conference of Catholic Bishops claim a ruling in favor of the federal government would prompt many Catholic medical practitioners and entities to opt out of programs covered by EMTALA which in turn would limit public access to health care in the future.

What Would Be the Impact of a Ruling in Favor of Idaho?

Impact in States Where Abortion Is Banned

A ruling in favor of Idaho will maintain the current patchwork of uneven access to medical emergency care for pregnant patients. Pregnant patients needing emergency abortion care in the 14 states that ban abortion and the states that severely restrict abortion would continue to be disproportionately impacted. This is because some states with abortion bans do not have health exceptions and those that do, do not make robust exceptions.

While all states have life exceptions, five states with abortion bans (Arkansas, Idaho, Mississippi, Oklahoma, and South Dakota) do not make exceptions for the health of the pregnant person. In these states, a hospital cannot legally provide abortion as a stabilizing treatment for a pregnant patient presenting with conditions that risk severe and lasting harms, including sepsis, kidney failure and loss of fertility, unless these conditions become life-threatening. And even in states that have exceptions for the health of the pregnant person, because these exceptions are often narrow and vague, pregnant people can still be denied emergency abortion care needed to preserve their health.

Due to the lack of health exceptions or meaningful and clear health exceptions in abortion bans and limits, physicians would continue to be reluctant to provide emergency abortion care. This chilling effect will persist, discouraging physicians from providing evidence-based emergency medical care, even in situations where they cannot prevent the loss of the pregnancy.

While the United States Conference of Catholic Bishops and other Catholic organizations assert in their amicus brief that pregnancy complications can always be safely and ethically treated without intentionally taking the life of an unborn child in a direct abortion, the American College of Obstetricians and Gynecologists (ACOG) and other medical professional organizations illustrate in their amicus brief some of the emergency situations clinicians might encounter and highlight the difficulty they may face in ascertaining whether an exception applies, stating that:

In many of the emergency medical conditions requiring abortion care, the loss of the pregnancy is inevitable. When a pregnant patient experiences PPROM [preterm premature rupture of the membranes] prior to viability, continuing the pregnancy risks serious health consequences including sepsis and death. Pre-eclampsia prior to viability also presents a risk of serious health consequences including seizure, stroke, multiple organ failure, and even death. An inevitable or incomplete abortion—commonly called a miscarriage—can cause excessive bleeding and risk of hemorrhage or infection and fetal or embryonic cardiac activity may remain. Other emergency situations occur precisely because a pregnancy is not viable and will not result in a live birth, like a molar or ectopic pregnancy. In these and other cases, abortion may be required to stabilize the patient.

This presents the second issue, timing. No clinical bright line defines when a patient’s condition crosses the lines of this continuum. At what point does the condition of a pregnant woman with a uterine hemorrhage deteriorate from health-threatening to the point that an abortion is “necessary” to prevent death? When is it certain she will die but for medical intervention?

These are questions that OBGYNs in states that ban abortion are currently facing. In a recent KFF national survey of OBGYNs, six in ten OBGYNs practicing in states where abortion is banned or where there are gestational limits say their decision-making autonomy has become worse since the Dobbs ruling. Four in ten OBGYNs in these states report they have personally felt constraints on their ability to provide care for miscarriage and other pregnancy-related medical emergencies since the Dobbs decision.

Seventeen women who experienced an obstetrical emergency while pregnant in a state with a near-total abortion ban submitted an amicus brief. They claim hospitals are engaging in dumping patients with pregnancy-related emergencies, the exact action EMTALA aims to block, rather than providing stabilizing care. After presenting at emergency rooms, these women were sent home with instructions to come back when their situations became more dire. While the delays in care did not help the fetus, many of them now suffer the health consequences of having their care delayed. These situations would continue to occur if the Supreme Court rules in favor of Idaho

Impact on Emergency Care in States Where Abortion Is Not Banned

In addition to those residing in states with abortion bans, a Supreme Court ruling that EMTALA does not preempt the Idaho abortion ban could also have an impact on people seeking emergency care in other states. Twenty-four states and DC have submitted an amicus brief claiming that allowing states to override EMTALA’s requirement to stabilize patients will drive more patients to amici States and “may result in more crowded waiting rooms, increased delays for urgent healthcare services, and overall strains on many amici States’ healthcare systems.”

Potential Broader Implications for Fetal Personhood

At the heart of this case, Idaho is asking the court to allow the state to recognize and protect the rights of a fetus over the health of the pregnant person. A decision in favor of Idaho, depending on how the court frames its decision, could crack open the door to future cases further recognizing the rights of embryos or fetuses, as did the Alabama Supreme Court’s IVF ruling. For instance, states may seek to mandate specific childbirth methods, such as a C-section contrary to the wish or beliefs of pregnant person to preserve the life of the fetus, or police the behavior of pregnant people to protect the fetus.

Idaho and the Idaho Legislature cite their law which stipulates that, “The people of Idaho recognize the “life of each human being begins at fertilization, and preborn children have interests in life, health, and well-being that should be protected.” The Charlotte Lozier Institute, an anti-abortion advocacy organization, contends in their amicus brief that the Biden Administration is disregarding EMTALA’s “plain text requiring physicians to protect the life of unborn children.” Some lower courts have ruled that hospitals have “dual stabilization requirements” to the pregnant person and the fetus, and the state can direct hospitals to prioritize the survival of the fetus over the wellbeing of the pregnant person.

While states have focused on restricting abortion care, this has broader implications for a pregnant person’s right to make decisions about how they want to manage their own pregnancy including the right to preserve their own health, and clinicians’ autonomy to manage pregnancy-related medical emergencies based on accepted standards of care.

The Trump Administration aimed to reshape the Medicaid program by newly approving Section 1115 demonstration waivers that imposed work and reporting requirements as a condition of Medicaid eligibility. However, courts struck down many of these approvals and the Supreme Court recently dismissed pending challenges in these cases. The Court dismissed pending litigation in Arkansas and New Hampshire due to the expiration of Arkansas’ waiver as well as the Biden Administration’s earlier withdrawals of these approved work requirement waivers. The Biden Administration had concluded that these provisions reduce coverage and thus do not promote the objectives of the Medicaid program. States could have appealed these withdrawal decisions to the HHS Departmental Appeals Board, and Georgia has challenged the withdrawal of its work requirements in court. An initial decision in the Georgia case is currently pending.

Although few Medicaid work and reporting requirements were implemented due to litigation, state withdrawals, and/or pauses during the COVID-19 pandemic, available implementation data from Arkansas suggests that these requirements were confusing to enrollees and result in substantial coverage loss, including among eligible individuals. This recent history of Medicaid work requirements illustrates the tensions between states, changing presidential administrations, and the courts. This issue brief answers key questions about these provisions:

What is the history of Medicaid and work requirements? What do we know about the impacts of Medicaid work requirements? What is the current status and future of Medicaid work requirements?

Although the Biden Administration has concluded that it does not believe work requirements further Medicaid program objectives, a future presidential administration could revisit these waiver provisions. To survive an expected legal challenge, the administrative record in any future approvals would likely have to support the conclusion that such waivers would further Medicaid program objectives, including promoting affordable coverage for low income people.

What is the history of Medicaid and work requirements?

Prior to the Trump Administration, no states had received waiver approvals to condition Medicaid coverage on work and reporting requirements, and legislative attempts to incorporate work requirements into Medicaid statute failed. Policy arguments for and against Medicaid work requirements are grounded in views about whether Medicaid is akin to a public assistance program, like Temporary Assistance for Needy Families (TANF), or one that provides health insurance, in line with the Affordable Care Act (ACA) expansion of the program as one of several routes to increasing access to affordable health care for uninsured Americans. Adults who receive TANF cash assistance generally are required to participate in work, as one of the express purposes of TANF enumerated in statute is to “end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage.” In contrast, Congress has not identified work as an objective for the Medicaid program. The ACA aimed to make Medicaid available to low-income adults through its Medicaid expansion, regardless of whether a person also met categorical eligibility requirements such as being pregnant, a parent, senior, or person with a disability. After implementation of the ACA’s Medicaid expansion, the Obama Administration signaled it would not approve state waiver requests to require work as a condition of Medicaid eligibility, concluding in its denial of Arizona’s request that work requirements “could undermine access to care and do not support the objectives of the [Medicaid] program.” In an effort to reframe Medicaid to a program akin to “public assistance”, unsuccessful Republican attempts to repeal and replace the ACA in 2017 proposed allowing states to require work as a condition of Medicaid eligibility.

In ways other than work requirements, Medicaid supports employment by providing affordable health coverage as well as voluntary employment referral and/or work support programs in some states. Research shows that being in poor health is associated with increased risk of job loss, while access to affordable health insurance has a positive effect on the ability to obtain and maintain employment. Medicaid coverage helps low-wage workers get care that enables them to remain healthy enough to work; across states enrollees report that this coverage helps them to manage chronic conditions and supports their ability to work jobs that may be physically demanding. While most Medicaid adults who qualify through non-disability pathways are already working, some states have launched initiatives to support employment for Medicaid enrollees without making employment a condition of eligibility. A couple of states (including AR and IN) have offered voluntary employment referral programs relying on general enrollee notices rather than targeted outreach. Other states (including LA, ME, and MT) have incorporated intensive targeted outreach and case management services into their voluntary work support programs.

In a departure from previous administrations, the Trump Administration encouraged and approved Section 1115 waivers that conditioned Medicaid coverage on meeting work and reporting requirements in 13 states (Figure 1). Under Section 1115 of the Social Security Act, the Secretary of HHS can allow states to use federal Medicaid funds in ways that federal rules do not otherwise allow, as long as the initiative is an “experimental, pilot, or demonstration project” that “is likely to assist in promoting the objectives of [the program].” In January 2018, CMS issued guidance inviting states to request Section 1115 waivers that impose work and reporting requirements (referred to as “community engagement”) as a condition of Medicaid eligibility for non-elderly, non-pregnant adult beneficiaries who are eligible on a basis other than disability. The guidance asserted that such provisions would promote program objectives by helping states “in their efforts to improve Medicaid enrollee health and well-being through incentivizing work and community engagement.” In contrast to voluntary work support programs discussed above, the guidance was explicit that state initiatives to condition Medicaid eligibility on meeting work and reporting requirements could not use federal Medicaid funds for supportive services to help people overcome barriers to work, such as childcare or transportation. The next day, CMS approved the first Medicaid work requirement in Kentucky’s waiver. In total, CMS under the Trump Administration approved waivers with work requirements in 13 states. Across states, work requirement waivers were generally similar in conditioning Medicaid coverage for certain adults on reported employment or other qualifying activities, with some variation in technical details. For example, waivers varied by:

population, with most applying to expansion adults, a couple applying to both expansion and traditional adults, such as low-income parents, in expansion states, and some later approvals applying to low-income parents and some limited other populations in non-expansion states;

exemptions, such as for older age or medical frailty (although the work requirement guidance excluded people who are eligible for Medicaid based on a disability, many Medicaid adults with disabilities do not receive SSI benefits and are eligible due to low income rather than disability status, so they would be subject to work requirements unless the state makes an exemption and they are able to successfully navigate the exemption process);

qualifying activities in addition to employment (such as education, community service, and job search or training);

number of hours of qualifying activities required per week or month and how to report these (such as through an online account); and

consequences for noncompliance (typically disenrollment, though two states (GA and SC) required compliance to be established prior to enrollment and one state (NE) conditioned access to certain benefits, rather than eligibility, on compliance with work requirements).

Of the 13 states that had approved work requirements, only Arkansas implemented such requirements with consequences for noncompliance. Other states that began implementation did not disenroll those who did not comply and instead paused implementation due to litigation and/or the COVID-19 pandemic. For state-level detail on these approved waivers as well as additional requests that were not approved by the end of the Trump Administration, see Figure 1 and Appendix Table 1. For more information on the timing of work requirement approvals, as well as subsequent legal challenges and withdrawals (as discussed in the section below), see Appendix Figure 1.

What do we know about the impacts of Medicaid work requirements?

Research on the relationship between work and health, including experience with AFDC, TANF, and SNAP, suggest that the effects of work requirements on health and employment may be limited. In the 1990s, states used Section 1115 waivers in attempts to increase work among enrollees in the Aid to Families with Dependent Children (AFDC) program; however, an analysis suggested that a significant part of the AFDC targeted population faced obstacles to work including disability. Similarly, research finds that work requirements in TANF—the program that replaced AFDC—have had little impact on increasing employment over the long-term, as most TANF enrollees are either already working or face significant employment barriers that work requirements do not address. Studies also find that SNAP work requirements do not significantly increase employment but result in large reductions in SNAP participation. Finally, a review of research on the relationship between work and health found that although there is strong evidence of an association between unemployment and poorer health outcomes, there is limited evidence on the effect of employment on health.

As most Medicaid enrollees are already working or face barriers to work, work and reporting requirements may cause coverage loss among eligible enrollees without increasing employment. Prior to the pandemic, the majority (63%) of non-dual (i.e., not also enrolled in Medicare), non-SSI, nonelderly Medicaid adults were already working full or part-time. Among those not working, most were not working due to caregiving (12%), illness or disability (10%), or school attendance (7%). Many of these reasons would likely qualify as exemptions from work requirement policies in most states, leaving just 7% of Medicaid adults (who reported that they were retired, unable to find work, or were not working for another reason) to whom work requirement policies could be directed. A 2018 analysis suggests that if all states were to implement Medicaid work requirements, between 1.4 and 4.0 million Medicaid adults could lose coverage, with the majority of disenrollment occurring among individuals who comply with the requirements (i.e., are working enough hours to satisfy requirements) and remain eligible but lose coverage due to new administrative reporting burdens or red tape. Research suggests work requirements could have particular adverse effects on certain Medicaid populations, such as women, people with HIV, and adults with disabilities including those age 50 to 64. Finally, the one in four Medicaid enrollees living in homes with limited internet access may face particular challenges meeting work and reporting requirements, as many states disseminated information about these requirements online and/or required enrollees to report compliance online.

Available implementation data suggests that Medicaid work and reporting requirements were confusing to enrollees and result in substantial coverage loss, including among eligible individuals. As noted above, few states implemented approved Section 1115 waivers with work requirements due to litigation, state withdrawals, and/or the COVID-19 pandemic. However, Arkansas’ waiver was in effect from June 2018 through March 2019 (when it was set aside by a federal court), with evidence from this period suggesting that more than 18,000 people (about 25% of those subject to the requirement) lost coverage in 2018. While enrollees who lost coverage in 2018 could reapply for coverage in January 2019, the vast majority of those who lost coverage (89%) remained unenrolled in early 2019. Although Arkansas’s program included safeguards intended to protect coverage for people with disabilities and others who should not have been subject to the requirements from losing coverage (including “medically frail” and “good cause” exemptions and “reasonable accommodations” to assist with meeting the requirements), few people used these safeguard measures relative to the number who lost coverage. Among those who accessed “good cause” exemptions, the vast majority did so due to disability/other health issues or technical issues, primarily related to reporting. This difficulty with reporting underscores that Arkansas’ administrative processes presented barriers to eligible people retaining coverage including and beyond those with disabilities. Lack of computer literacy and internet access among enrollees created barriers to setting up online accounts as well as ongoing reporting. Research indicates that enrollees in Arkansas were unaware of or confused by the new work and reporting requirements, which did not provide an additional incentive to work beyond economic pressures.

What is the current status and future of Medicaid work requirements?

The Biden Administration began the process to withdraw Section 1115 work requirements in February 2021 and has since issued final withdrawals for all states that had approvals. CMS generally reserves the right to withdraw approved waiver authorities at any time it determines that these authorities are no longer in the public interest or promote Medicaid objectives. A January 2021 executive order from President Biden directed HHS to review waiver policies that may undermine Medicaid. CMS subsequently withdrew Medicaid work requirement waivers in all states that had approvals. These withdrawal letters cited evidence from Arkansas (described above) as well as additional data indicating that about 40% of those subject to work requirements (or 17,000 beneficiaries) in New Hampshire and 33% (or 80,000 beneficiaries) in Michigan were at risk of coverage loss, prior to implementation pauses. The letters also highlighted that job and income loss among the low-income population during the COVID-19 pandemic were likely to exacerbate the risks of coverage loss under work requirements. No states were implementing work requirements at the time of withdrawal, either due to the pandemic, litigation (see Appendix Table 2), or prior termination by the states themselves (see Figure 1).

Following the Biden Administration’s withdrawals, in April 2022 the Supreme Court dismissed pending appeals in cases that had found work requirement approvals unlawful. Previously, in February 2020 a DC Circuit Court of Appeals panel affirmed in a unanimous opinion that the HHS Secretary’s approval of Medicaid work requirements in Arkansas was unlawful because the Secretary failed to consider the impact on coverage. The DC appeals court subsequently affirmed that the Secretary’s New Hampshire approval also was unlawful. Before leaving office, the Trump Administration asked the Supreme Court to reverse these appeals court decisions and the Court agreed to hear the cases in December 2020. However, following the Biden Administration’s withdrawals of the Arkansas and New Hampshire work requirements, in April 2021 the Supreme Court removed the cases from its oral argument calendar. In April 2022, the Biden Administration asked the Court to vacate the lower court decisions and dismiss the Arkansas case as moot (as that waiver had expired) and remand send the New Hampshire case back to HHS (as New Hampshire had not asked the Court to review the case involving its waiver). In April 2022, the Court granted this motion, effectively putting an end to the pending litigation. (For more information on work requirement litigation across states, see Appendix Table 2 and Figure 1.)

The Supreme Court’s dismissal does not preclude future presidential administrations from approving new Section 1115 work requirements. Each case challenging work requirements (see Appendix Table 2) has centered on the administrative record of the underlying waiver approvals under the Trump Administration, with courts finding that these approvals were unlawful because they were unsupported by the administrative records. Specifically, the courts found that the Secretary did not consider impacts on coverage contained in the administrative records. Although the Biden Administration has concluded that it does not believe work requirements further Medicaid program objectives, CMS under future presidential administrations could issue new guidance encouraging work requirement waivers and approve such waivers based on a different interpretation of program objectives—though these would likely face legal challenges. For example, although Arkansas removed its work requirement in its new waiver, the state noted that should federal law or regulations permit the use of a work requirement as a condition of eligibility in the future, it would seek to amend the demonstration accordingly. Separately, states had the opportunity to appeal the Biden Administration’s withdrawals of work requirement waivers to the HHS Departmental Appeals Board and Georgia has challenged the withdrawal of its work requirements (which would have been part of a limited coverage expansion) in court. Georgia’s challenge remains pending, with an initial decision expected later this summer.

Conclusion

As a health coverage program, Medicaid can support employment by providing health coverage and access to care and medications that enable people to work, and it can also provide voluntary employment referral and/or work support programs. In a departure from previous administrations, the Trump Administration encouraged and approved Section 1115 waivers that conditioned Medicaid coverage on meeting work and reporting requirements. Though few of these work requirements were implemented due to legal challenges, state withdrawals, and/or the COVID-19 pandemic, available data suggests that such requirements can result in substantial coverage loss, including among eligible individuals, as evidenced by the more than 18,000 individuals who lost coverage in seven months under Arkansas’ work and reporting requirement. Based in part on this data, the Biden Administration withdrew all approved work requirement waivers by the end of 2021; Georgia has since challenged the withdrawal of its work requirements in court. Following these withdrawals and the expiration of Arkansas’ waiver, the Supreme Court dismissed pending appeals in cases that had found work requirement approvals unlawful. Though the Court’s action does not preclude future presidential administrations from approving new Section 1115 work requirements, these would likely face legal challenges.