Hastings Constitutional Law Quarterly


E. H. Morreim


The Emergency Medical Treatment and Active Labor Act ("EMTALA") requires every Medicare-contracting hospital with an emergency department ("ED") to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare's initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA's constitutionality. Although this longstanding statute may not be reconfigured any time soon, it is important to consider the constitutional legitimacy of legislation carrying such an enormous and growing impact.

This Article proposes that EMTALA violates the Fifth Amendment's Takings Clause on two levels. First, it imposes a host of individual takings as the government forces one private party-the hospital-to transfer personal property to another private party-the patient. Here, violations are episodic, depending on whether the hospital is justly compensated. Second, EMTALA as a whole is an "unconstitutional condition" imposed on hospitals' participation in Medicare. Although the government can properly attach "strings" to ensure public funds are spent as Congress intended, the government cannot with impunity require persons to waive fundamental constitutional rights as a condition for receiving a government benefit. This Article shows that, as EMTALA forces hospitals to abdicate their Fifth Amendment right against uncompensated takings, it exceeds the Supreme Court's boundaries on federal spending.

In the end, the mandate that hospitals care for emergency patients should remain, but hospitals must be justly compensated. Patients who can pay are of course legally obligated to do so, but for those who cannot or will not, the government must make good.