"It doesn't make sense": What happens when life-saving abortion isn't protected, despite federal law
Last week, a ruling in Texas stated that hospitals and emergency rooms in the state are exempt from having to perform life-saving abortions.
Specifically, a federal appeals court ruled that hospitals that receive federal funding in Texas aren’t required to provide life-saving abortions under a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA). The debate on whether or not EMTALA covers abortions dates back to shortly after Roe v. Wade was overturned, when the U.S. Department of Health and Human Services stated EMTALA took priority over state laws. Under EMTALA, hospitals and emergency rooms are required to provide life-saving abortions even where there are strict abortions laws, the Biden administration stated. However, states like Texas and Idaho are challenging this and claiming that EMTALA doesn’t take priority.
Importantly, protections offered by EMTALA remain in other states where abortion access is limited. It’s only in states that are challenging it where EMTALA protections aren’t guaranteed. This can change as there is likely to be a long legal battle around this moving forward. But what’s at stake when life-saving abortions are no longer an option in some states under the protection of EMTALA?
“It’s not giving any kind of comfort to either pregnant women or people that might consider becoming pregnant in Texas,” Seema Mohapatra, a law professor at the SMU Dedman School of Law, told Salon. “It’s also going to have a chilling effect on providers as their judgment is going to be questioned as we saw with Kate Cox.”
Last year, Cox was pregnant with a fetus who had the fatal condition Trisomy 18. Her doctors recommended terminating the pregnancy as the fetus likely wouldn’t survive after birth. Cox also had elevated vital signs, a high risk of a uterine rupture. She even went to the emergency room four times. Despite this, the Texas Supreme Court ruled that she didn’t qualify for an abortion under the medical exception to the state's near-total abortion ban. As Mohapatra pointed out, the Texas Supreme Court undermined the judgment of her providers. Without EMTALA taking clear precedent, doctors will be forced into even more frightening situations where the stakes are high, and their hands could be tied once again when it comes to providing a life-saving abortion.
Notably, EMTALA first came to light as a response to hospitals turning away uninsured pregnant folks in active labor, Mohapatra explained. Congress passed the law in 1986 and specifically included provisions mandating federally funded hospitals to accept a patient in active labor even if she doesn’t have insurance. Despite this, various news outlets have reported numerous violations. Still, aside from active labor, abortion care is normally protected under EMTALA if it’s needed to save a pregnant person’s life.
“If in the opinion of the doctor, an abortion is what is necessary in order to stabilize her then any state law that conflicts with that, EMTALA would preempt, and that would be a normal reading of the way federal preemption works,” Mohapatra told Salon, adding that what the Texas appeals court is now arguing that EMTALA doesn’t regulate hospitals — but state laws regulate hospitals. “It doesn't logically make sense for the opinion to say that EMTALA does not regulate hospitals because that's exactly what EMTALA does, EMTALA tells hospitals that if you receive Medicaid or Medicare funding, you have to comply with the requirements of EMTALA.”
Most striking, Mohapatra said, is that the opinion basically sets up the fetus to have a right to life-saving treatment as well via EMTALA.
“It sets a kind of dual patient situation where the pregnant woman and what they call the ‘unborn child’ are in both the considerations of the hospitals and the physicians,” she said. “And basically using the protective language of EMTALA for the unborn patient.”
But in the example of an ectopic pregnancy, which is when a fertilized egg implants and grows outside of the uterus in the abdomen and is not a viable pregnancy, this situation could clearly make the situation even more dangerous for the pregnant person. Typically, an abortion — either surgical or medication — would be needed as “stabilizing treatment.” But without EMTALA, physicians in Texas can’t say “I have this obligation under EMTALA” to perform an abortion. Instead, a decision has to be made based on the interpretation of the state law.
Dr. David Hackney, a Cleveland-based maternal fetal medicine specialist and former chair of the American College of Obstetrics and Gynecologists Ohio chapter, told Salon it’s “surreal” that debates around life and health are even taking place right now. Hackney said one of the biggest challenges for physicians in this situation, one he is familiar with when he worked under SB23 in Ohio, is that they’re forced to balance a personal “unknown risk” with one of the patient’s lives.
“So the default is you're going to wait until they're so sick that no one would ever doubt it in a court of law,” Hackney said. “But it’s way too far to get to that line, and then not cross that line, so it just overtly endangers women’s lives.”
Mohapatra said similar life-of-pregnant-person exceptions don’t work, and aren’t an effective safety net. Technically, Texas makes an exception for abortions when a pregnancy or the life of the pregnant person is seriously threatened, but experts have long doubted such exceptions would work as intended. Now with EMTALA not covering life-saving abortions, Mohapatra said, “Any kind of safety net that there was in this area seems to be taken away.”
The U.S. Supreme Court recently ruled that it will allow Idaho's abortion ban to go into effect and hear an appeal in April. Notably, the law conflicts with EMTALA. Dr. Caitlin Gustafson, a Family Physician who provides OB Care (FMOB), based in McCall, Idaho, told Salon via email that this raises questions about "how healthcare providers should navigate their obligations under both laws, leading to confusion and uncertainty." She even advised people in Idaho who are pregnant or considering getting pregnant to check with their insurance provider if flight transport such as Life Flight is covered or seek out "supplemental life flight insurance."
"We hope they never need it, but our ability to provide on-the-spot care has deteriorated now that Idaho legislators have made this important medical decision for you," she said. "Providers in Idaho now face ethical and legal dilemmas when it comes to providing emergency abortion care, torn between their obligations under EMTALA to provide necessary stabilizing treatment and the potential legal consequences of violating Idaho's abortion ban."
The U.S. Supreme Court is now going to have to consider whether or not EMTALA takes precedence in hospitals or if state laws do. If the U.S. Supreme Court rules that state laws take priority over EMTALA, it would "throw EMTALA into flux,” Mohapatra said. “Then also maybe repercussions of any other kinds of federal regulations.”
