Dueling court decisions in Idaho and Texas this week have only deepened the already considerable uncertainty about how new state abortion bans affect emergency treatment of miscarriages, ectopic pregnancies and other dangerous pregnancy complications.
The conflicting decisions over whether a 1986 federal law, the Emergency Medical Treatment and Labor Act (EMTALA), meant to ensure that every patient receives treatment for medical emergencies, supersedes state abortion bans have thrust doctors, hospitals and pregnant patients into an unexpected new front in the nationwide fight over abortion. EMTALA is a bedrock of American healthcare law, ensuring the poor and uninsured are not turned away in medical emergencies. Lower court disagreement over its limits threatens to undermine it as a safety net, say observers, and might deliver the abortion debate back to the Supreme Court, perhaps ahead of midterm elections.
“We have women coming into emergency rooms all the time where they are essentially having a miscarriage. They’re bleeding like crazy; they’re bleeding to death,” said Michael Menchine, associate professor of clinical emergency medicine at the Keck School of Medicine of the University of Southern California. “There’s no way to know how a prosecutor, or a citizen who can sue, might view that when all you’re trying to do is prevent a woman from bleeding to death.”
The lawsuits are the result of the Supreme Court’s decision in June to strike down the nationwide right to abortion. About a dozen states, including Texas and Idaho, enacted bans immediately or have let older “trigger laws” take effect. In response, the Biden administration instructed hospitals that EMTALA requires physicians to treat patients if abortion is the “stabilizing treatment” in medical emergencies, despite any state ban. Texas sued the federal government over the guidance, supported by anti-abortion medical associations, saying its requirement that abortions be performed if needed to stabilize a patient went beyond the 1986 law’s authority. The federal government sued Idaho over its ban, which allows abortions only to prevent death, as conflicting with EMTALA.
National medical societies such as the American Medical Association and the American College of Emergency Physicians have supported the Biden administration’s guidance. “While emergency medicine does not involve the performance of abortions that are not medically indicated, it sometimes requires abortion in emergency situations as the only way to avoid significant harm to the pregnant patient,” the groups said in a statement submitted in the Texas case.
Nevertheless, the federal judge in the Texas case, U.S. District Judge James Hendrix, ruled the EMTALA guidance “unauthorized” on Tuesday, in part because the 1986 law does not refer to abortion and because it was released without a preceding public comment period, and blocked its application Texas. The American Association for Pro-Life Obstetricians and Gynecologists, an anti-abortion physicians group, applauded the decision in a statement sent to Grid, saying it protected the “conscience protections” of doctors who did not perform abortions. (White House spokesperson Karine Jean-Pierre said that “women may die as a result” in a statement on the decision.)
A day later, the federal judge in the Idaho case, U.S. District Judge B. Lynn Winmill found in contrast that state’s abortion ban was overridden by the 1986 law because the state law would otherwise prevent abortions meant to avert serious harm to pregnant patients and inject uncertainty into even whether one could be provided to save a life. The state conceded that ending a deadly ectopic pregnancy would be a “criminal act” under the law, the judge noted.
“For the moment, this leaves physicians in states with various types of abortion bans at the mercy of local prosecutors, some of whom will be politically motivated to aggressively prosecute abortion cases,” said physician Matthew Wynia, director of the Center for Bioethics and Humanities at the University of Colorado, who this week called for civil disobedience by doctors if they are forced to choose between treating patients and abortion bans, in a New England Journal of Medicine editorial. “We are caught in a double-bind — perhaps dammed if we do the right thing, and certainly dammed if we don’t,” he said.
Illustrating that bind, Republican Texas State Sen. Bryan Hughes, a sponsor of the Texas six-week abortion ban that allows private citizens to sue over abortions, on Aug. 4 sent a letter to the Texas State Medical Board calling for “investigation for potential malpractice” of doctors who delay treatment of pregnancy complications over uncertainty about the legality of procedures. That indecision was caused by the law that Hughes sponsored. Hughes did not reply to Grid’s request for comment.
“The problem here is the decision to save a life when there’s a life-threatening emergency is in the eye of the beholder,” said Menchine. U.S. maternal mortality rates have already been rising, killing 861 patients in 2020, and exceed those in other developed nations. “Putting doctors in the middle of a legal question, when the medical questions are already difficult enough, is just really not a position that I think is fair to patients or doctors,” he added.
That same uncertainty is also shaping the medical insurance landscape, said Mike Stinson, vice president for Public Policy and Legal Affairs at the Medical Professional Liability Association. Many abortion providers have simply closed shop in states with new bans, he noted, moving across state lines.
The National Abortion Federation, for example, has imposed new rules on medication abortions requiring patients to take both pills in those cases in states without bans, the Washington Post reported, to avoid lawsuits. How the new state bans and fights like the EMTALA cases will affect medical malpractice insurance remains to be seen, with court cases across states likely taking years to shape the post-Roe v. Wade medical-legal landscape.
“The easiest way to sum it up is the one thing insurers hate more than anything else is uncertainty,” said Stinson. “And with a lot of these new laws, there is a huge element of uncertainty as to what the exact level of risk is going to be overall.”
Beyond abortion, the ultimate effects of the legal battle could also weaken or sever a lifeline for people who are uninsured or otherwise cannot afford regular medical care.
EMTALA was instituted in 1986 to prevent hospitals from “dumping” unwanted poor patients from emergency rooms, said Menchine. There is a real danger that abortion ban cases could undermine that law, whose requirements were still being fought over even before the Supreme Court decision. “That’s not something we want to do, given states have the right to carve out specific diagnoses and therapies,” said Menchine. “That’s a very dangerous reach into the patient bedside.”
Thanks to Lillian Barkley for copy editing this article.