Anti-abortion states are targeting an emergency healthcare law. Will the supreme court side with them?
One of the only universal rights to healthcare in the US is to be treated in the emergency room – a place where doctors are required to stabilize patients if their future health or life is in serious jeopardy.
That right, guaranteed by the Emergency Medical Treatment and Labor Act, known across the country by healthcare professionals as Emtala, was born out of what was once a common practice called “patient dumping” – transferring patients who could not pay from private hospitals to public counterparts, even in emergency situations.
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“There were many reasons it was enacted,” said Sara Rosenbaum, a professor of health law at George Washington University’s Milken Institute of Public Health, and an attorney who helped craft the Emtala law.
“One was because people were dumping [patients] who were uninsured, but another reason – and it was in the congressional record – was pregnant women who were being turned away,” she said.
Patients are still “dumped” and turned away today – one need only look through recent hospitals found in violation of Emtala for those cases – but few instances compare to the galling treatment of pregnant women before the law’s passage.
“I remember a young woman in labor who was sent to Parkland [Memorial hospital in Dallas] from another hospital – a religiously affiliated hospital,” Dr Rob J Anderson said in an oral history recorded in 2014. Anderson was in charge of the hospital’s emergency room at the time. “When she told them that she was so glad that they would still see her even though her husband had lost his job, they pushed her legs together, started an IV, and sent her to Parkland.”
The woman was “crowning” – in an advanced stage of labor – and ultimately delivered in Parkland’s hallway. Anderson was so angry he went to the other hospital and challenged the doctor to “go outside”, a euphemism for a fight. “I was pretty hot-headed about it,” he said.
This is about a 40-year-old law that is the only universal guarantee of healthcare Americans have
Sara Rosenbaum
Pregnant women were far from the only group being dumped by private hospitals. In the same oral history, Anderson recounts a cab driver who arrived at the emergency room with a man who had been stabbed, the knife moving up and down as he breathed, with an IV from another hospital hanging on the cab’s coat hook.
In the coming week, the supreme court will consider whether this law – passed in 1986 to protect pregnant women, their future fertility and their children – should be undone by the near-total state abortion bans which conflict directly with its provisions. The case is a direct consequence of Republican-led states’ quest for total control over abortion regulation.
To understand how the anti-abortion movement came to target Emtala, it is worth revisiting how the law came to be in America’s byzantine system of largely private healthcare.
“This is about a 40-year-old law that is the only universal guarantee of healthcare Americans have,” said Rosenbaum. If the supreme court finds in favor of anti-abortion states, “We could find ourselves in a world where some state running some kind of culture war agenda has carved up emergency room access.”
Signed into law by Ronald Reagan, Emtala forced hospitals to treat these emergency patients or risk losing funding from Medicare. Medicare, the federal health insurance program for the elderly, and its sister program Medicaid routinely account for more than half of hospitals’ total revenue.
A collision of federal and state law
But Emtala, and all its protections for American patients, were put on a crash course with abortion bans almost immediately after the supreme court overturned Roe v Wade in 2022.
“The decision came down at 10.02 and at 10.03 I was calling my daughter to tell any friend in a pre-viability [abortion ban] state not to get pregnant,” said Rosenbaum. “They should not be pregnant in those states, whether it was a pregnancy-related emergency or just an emergency,” as those pregnant women, said Rosenbaum, “would not get proper emergency care”.
The conflict between abortion bans and Emtala’s requirements make treating pregnant patients a fraught proposition.
The supreme court will hear oral arguments on Wednesday in a case called Idaho v United States. The case was brought after Idaho imposed a near-total abortion ban that allowed doctors to perform an emergency abortion only if a pregnant patient was on the brink of death.
That law is in direct conflict with Emtala, which requires doctors to stabilize emergency patients so they won’t face severe health consequences – a radically lower bar for intervention than Idaho’s. Shortly after Roe was overturned, the Biden administration issued a guidance stating that the federal law pre-empts state abortion bans, ultimately suing Idaho over its ban.
Meanwhile, the state of Idaho argued in its petition to the supreme court that Emtala was silent on abortion, and that the law was meant only to ensure hospitals did not turn away uninsured patients. It also argued it was the state’s right to limit abortion to only be performed to save the life of a mother, based on “more than 100 years” of legislation including an 1864 territorial law enacted before Idaho was a state.
Already, the chilling effect of abortion bans on treatment is clear from a spike in harrowing complaints about pregnant people turned away from hospital emergency rooms. A Missouri woman named Mylissa Farmer was denied an abortion in both Mississippi and Kansas, in spite of the fact that her 17-week-old fetus would not survive; she risked severe infection and the loss of her uterus. She was forced to travel to Illinois for an emergency abortion. Farmer’s case became one of the first investigations of an Emtala violation in the era of abortion bans.
“It was dehumanizing. It was terrifying. It was horrible not to get the care to save your life,” Farmer, who lives in Joplin, Mississippi, told the Associated Press.
In Texas, a woman miscarried in the lobby of a hospital when staff refused to admit her. In North Carolina, another state with abortion restrictions, a woman gave birth in a car after a hospital refused her an ultrasound, according to reporting by ABC News. The newborn later died.
“You see a pregnant person walk through the door in Idaho or Texas, or any of these states that have actively interfered with Emtala now, and it’s like potential prison time if you do anything” as a doctor, Rosenbaum said.
Ironically, Texas, which has also challenged the Biden administration’s guidance on Emtala, helped assure its passage in the 1980s. The state first passed protections against “patient dumping” in 1985.
“What this would mean is that, in many red states in America, the only exception to their abortion restrictions or bans is for the life of the mother – not their health,” said Lawrence Gostin, a health law expert and distinguished professor at Georgetown Law. “So, as a result, there’s some women who have to sit in parking lots or in waiting rooms until their condition gets so serious that they could die.
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“The values at stake here are not just ideological abortion debate material,” Gostin said. “This affects people’s lives and the right to go to a competent doctor when they’re in dire urgent needs.”
Doctors have argued that exceptions to abortion bans are completely unworkable, particularly those that only provide for doctors to save a woman’s life.
“When is it certain she will die but for medical intervention?” asks an amicus or friend of the court brief by three of the US’s largest and most esteemed professional associations of doctors – the American College of Emergency Physicians, the American College of Obstetricians and Gynecologists, and the American Medical Association. “How many blood units does she have to lose? One? Two? Five?”
Emergency medicine doctors see pregnant patients on “virtually every shift”, the brief says, and complications arising from pregnancy can be severe and threaten life and limb. Without treatment, complications from pregnancy can result in the loss of a uterus, “seizures, stroke, vital organ damage failure and death”.
What’s more, the number of abortions happening in hospital emergency rooms is diminishingly small, according to experts and doctors – perhaps only as many as a few dozen out of the roughly 1 million abortions a year in the US, according to Rosenbaum.
“The hope coming out of the oral argument and the briefing is that there are enough justices who will understand – including a couple justices who voted [to overturn Roe v Wade] – this is an exceptionally vital and narrow statute,” said Rosenbaum.
