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.

Keywords: EMTALA, taking, 5th Amendment, property, public use, just compensation, Medicare