Law protecting women seeking emergency abortions is target in US supreme court case

Mylissa Farmer’s pregnancy was doomed. But no one would help her end it.

Over the course of a few days in August 2022, Farmer visited two hospitals in Missouri and Kansas, where doctors agreed that because the 41-year-old’s water had broken just 18 weeks into her pregnancy, there was no chance that she would give birth to a healthy baby. Continuing the pregnancy could risk Farmer’s health and life – yet the doctors could not act.

Weeks earlier, the US supreme court had overturned Roe v Wade and abolished the national right to abortion. It was, legal counsel at one hospital determined, “too risky in this heated political environment to intervene”, according to legal filings.

In immense pain and anguish, Farmer ultimately traveled several hours to Illinois, where abortion is legal. There, doctors were able to end her pregnancy.

Farmer’s account is detailed in a legal complaint she filed against the hospitals, arguing that they broke a federal law that requires hospitals to treat patients in medical emergencies. In a first-of-its-kind investigation, the US government sided with Farmer and declared that the two hospitals had broken the law.

The future of the government’s ability to invoke that law to protect women seeking emergency abortions is now in question. The law, the Emergency Medical Treatment and Labor Act (Emtala), is at the heart of the US supreme court’s latest blockbuster abortion case, which comes out of Idaho.

On Friday evening, the supreme court announced it would hear oral arguments in a case involving Emtala. Under the law, which dates back to 1986, hospitals that receive federal Medicare dollars – the vast majority of hospitals in the US – must stabilize people in emergencies, regardless of their ability to pay. The Biden administration has argued that the law protects access to emergency abortions, while abortion foes contend that it does not.

Emergency abortions, like Farmer’s, have taken center stage in the battle over post-Roe v Wade abortion access, as dozens of women across the United States have stepped forward to say that they were denied medically necessary abortions. The Emtala case, which the justices will hear in April, is set to pour gasoline on that fight, as it raises the question of whether the federal government has any role in protecting physicians and patients who feel they’re at war with state abortion bans.

“There are a lot of doctors who, despite the state’s abortion restrictions, still want to go back and they still want to serve the communities that need the care,” said Dr Alexandria Wells, an OB-GYN in Washington state and a fellow with Physicians for Reproductive Health. “One of the arguments that they had was Emtala, and the ability to say to your hospital administration that ‘There is this federal standing that we have to provide this level of care’. And so they were able to provide the care that they knew was necessary to patients.

“Without Emtala, I think a lot of providers are afraid that there’ll be less fear from institutions about saying ‘no’” when abortions are needed in emergencies, Wells added.

As part of its decision to take the case, the supreme court agreed to let Idaho enforce a law that would ban almost all abortions. Under the state’s abortion ban, Idaho doctors who perform the procedure may face criminal consequences. In court, they can use an “affirmative defense” to argue that they only performed the abortion to save a patient’s life.

“To separate abortion out from the rest of healthcare that is protected by Emtala is to treat pregnant people differently from everyone else,” said Alison Tanner, senior counsel at the National Women’s Law Center, which is representing Farmer.

“Abortion can be necessary to save someone’s life. It’s also sometimes necessary to save someone’s health and future fertility,” Tanner continued.

In Oklahoma, another woman, Jaci Statton, has also filed a complaint accusing a hospital of violating Emtala. In her complaint, Statton said that she was diagnosed with a partial molar pregnancy – a condition that would not result in a healthy baby and put her life at risk. An abortion would stabilize Statton, the complaint said, but an Oklahoma hospital failed to offer the procedure to Statton.

Instead, providers at the hospital “told Jaci that they could not provide an abortion until she was actively crashing in front of them or on the verge of a heart attack”, the complaint said. “In the meantime, the best that they could offer was to let Jaci sit in the parking lot so that she would be close to the hospital when her condition further deteriorated.”

Researchers from the University of California, San Francisco, are currently at work on an ongoing study into how Roe’s downfall has affected healthcare providers’ ability to meet the US standard of care. One doctor in a state with an abortion ban described to researchers a case in which medical providers refused to even get near a patient who went into labor too early to deliver a healthy pregnancy. The situation was so bad, the doctor said, that they were considering leaving the state.

“I will never forget this case because I overheard the primary provider say to a nurse that so much as offering a helping hand to a patient getting onto the gurney while in the throes of a miscarriage could be construed as ‘aiding and abetting an abortion.’ Best not to so much as touch the patient who is miscarrying,” the doctor said, according to preliminary findings from the study. “A gross violation of common sense and the oath I took when I got into this profession to soothe my patients’ suffering.”

“This is no way to do healthcare,” said Carole Joffe, a professor at the University of California, San Francisco’s department of obstetrics, gynecology and reproductive sciences. Joffe is one of the authors of the study’s preliminary findings. “All these medical emergencies are making a very powerful case that pregnancy can be very dangerous and of course it has to be treated within the healthcare system.”

When he helped overturned Roe, US supreme court Justice Brett Kavanaugh wrote in a concurring opinion that Roe’s demise “returns the court to a position of neutrality” on abortion and permits states to make their own decisions about how to handle the procedure.

That outcome, however, has not come to pass. Instead, a flurry of abortion-related lawsuits has drawn federal courts, including the supreme court, back into the fray of the abortion wars. Last week, the famously conservative US court of appeals for the fifth circuit affirmed a ruling out of Texas that found that the Biden administration had overstepped when, shortly after Roe’s overturning, the administration issued guidance asserting that Emtala covered emergency abortions. (That case is not connected to the Idaho case.)

Emtala, Kurt Engelhardt wrote, “does not mandate any specific type of medical treatment, let alone abortion”.

In December 2023, the US supreme court also agreed to take up another abortion case, which involved the availability of abortion pills. The justices will likely rule in both cases by summer – just months ahead of the 2024 presidential election, in which abortion is set to be a major issue.