Does Federal Law Protect Abortions in Medical Emergencies?

YouIn the week since the Supreme Court retorted Roe V. WadeA number of physicians across the country are having difficulty navigating new legal environments when treating patients with severe medical conditions.

Federal health care law already required that physicians treat pregnant people—and all patients—in medical emergencies and provide care to stabilize them, regardless of state laws around specific procedures or the patient’s ability to pay. The Biden Administration issued guidance last month that explicitly reminded providers abortion is included those scenarios, and said doctors are protected if they terminate a patient’s pregnancy as part of emergency treatment, even in a state that now bans the procedure.

This new guidance now faces its first legal challenges as two lawsuits are filed against it in Texas, Idaho and California. Both cases could impact how doctors interpret state abortion laws and whether they can perform emergency abortions even in ban states. It also may have implications on the care that pregnant women can receive back in their states.

The first case comes from Texas, which sued the federal government last month to block the guidance, arguing it amounted to an “abortion mandate” that unlawfully tries to preempt the state’s near-total abortion ban. On August 18, the first hearing was held in this case. Separately, the Biden Administration’s Justice Department filed a lawsuit against Idaho, which has an abortion law that leaves doctors facing criminal penalties for providing abortions under any circumstances, including when the mother’s life is at risk. The Idaho case is the first time the Biden Administration has taken proactive steps to block a state’s abortion ban since the fall of Roe. August 22 is the date for the first hearing. Both state laws are set to take effect Aug. 25, so the cases could move quickly through the courts before then— and may get appealed to higher courts before a final resolution.

It is the Emergency Medical Treatment and Labor Act of Labor (EMTALA), which governs the Biden Administration’s July guidance. The Administration has been scrambling to respond to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization,He has been cautious about taking any actions that might lead to court rulings that limit executive power. While the President repeatedly stated that Congress should act to defend abortion rights, Democrats do not have the votes necessary to adopt such legislation. The Administration has been hoping to use the EMTALA guidance to protect some abortion access in the absence of federal legislation, so what the courts in decide in Texas and Idaho could enhance or severely curtail the executive branch’s ability to weigh in on the issue in restrictive states.

Here’s what you need to know about how these two cases could affect abortions in emergency situations.

Federal health care law

EMTALA wasn’t originally about red and blue state policy divides. The 1986 law was intended to guarantee that all patients had access to emergency care, regardless of financial ability.

The law states that emergency departments must screen patients, and if the patient is in an “emergency medical situation,” the staff is required to provide treatment that will stabilize them. These situations are defined as something that would put the health of the patient in “serious jeopardy” or impair bodily functions unless treated.

When it comes to pregnancy, “we’re talking about things like ectopic pregnancy, and incomplete miscarriages where there’s a risk of hemorrhage, and preeclampsia and HELLP syndrome,” says Lindsay Wiley, a law professor and director of the Health Law and Policy Program at UCLA Law. “We’re not talking about a run of the mill elective abortion situation.”

Texas argues that federal law does not allow doctors to provide abortions now banned under its state laws, and that the Biden Administration wants to “transform every emergency room in the country into a walk-in abortion clinic.” But the Biden Administration, as well as liberal states and medical groups that filed briefs with the court, argue that’s not what the federal government is trying to do. They claim that this guidance does not add anything to the federal law but reminds hospitals and doctors that the Administration will continue to enforce abortion laws. EMTALA violation can lead to hospital ineligibility for Medicare payments. That could spell disaster for financial sustainability.

“EMTALA is the foundation of emergency medicine in this country for more than 35 years. It has been supported broadly by ideologically diverse coalitions and people,” says Skye Perryman, CEO of Democracy Forward, which is representing a coalition of medical groups that filed briefs supporting the Biden Administration in the Texas and Idaho cases. “The federal government is seeking to enforce a longstanding law that pregnant people and all people are entitled to required and urgent emergency care.”

What is considered a “health exception”?

Right now, abortion laws in all states allow abortions when the pregnant person’s life is at risk. These exceptions can be confusing and doctors have had to work with vague laws to help determine whether a pregnant woman is in an urgent situation.

Idaho’s trigger ban, for example, which is set to go into effect Aug. 25, has exceptions for the risk of death to the pregnant person or when the pregnant person has reported rape or incest to law enforcement. But those exceptions can only be used as a defense in a criminal trial after someone has charged the doctor with violating the law—there’s no judgment doctors can make beforehand that will indemnify them if they provide the procedure.

EMTALA uses a wider definition of stabilizing treatment. This includes policies designed to allow patients to be transferred and discharged in a reasonable manner. But Idaho argues there isn’t a significant distance between its legal exceptions and what EMTALA would consider a medical emergency. “The argument is strong that the federal law preempts contrary state laws that come into conflict,” says Elizabeth Sepper, a professor at the University of Texas at Austin School of Law. “Idaho ended up arguing that there’s no conflict between the Idaho law with this super narrow exception and the instances where EMTALA would require doctors to provide abortions, which are also a relatively narrow range of circumstances, but broader than just life saving.” In other words, Idaho argues its law still allows for the appropriate exceptions under EMTALA, so its enforcement shouldn’t be limited, as the Biden Administration is arguing.

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The arguments in Texas are partially reversed. Texas’ law does include exceptions for the health of the pregnant person, though physicians have said those are still vague. Texas has been trying to block EMTALA’s guidance on abortions. Therefore, the Biden Administration argues that EMTALA doesn’t require Texas doctors and hospitals to violate its state law.

Texas is mainly saying that the Biden Administration’s guidance would unlawfully force doctors in the state to provide abortions in situations that would leave them exposed to criminal penalties under the state’s laws. Texas passed a ban on abortions within six weeks last year. This ban is enforced through private civil lawsuits. The trigger ban, which outlaws nearly all abortions as well as adding criminal penalties, is due to take effect August 25.

If Texas succeeds, the underlying EMTALA law would stay in place, but it would be a blow for the Biden Administration’s strategy on protecting reproductive health. “They want the guidance out there,” Wiley says. “The guidance is meant to be a kind of warning shot, because hospitals are currently actively in this process of working out their internal policies and procedures about how are they going to comply with the Texas state law.”

Patients in Idaho could feel the consequences even more acutely. If the Biden Administration succeeds in challenging the state’s law, it could guarantee that pregnant patients in Idaho will have access to abortions in emergency situations. This still wouldn’t allow the vast majority of abortions to happen in the state, but it would be meaningful for patients in Idaho and elsewhere facing significant health risks. “It would mean that EMTALA shapes the boundaries of where states can go with their abortion bans, that they can go so far and quite far, but that abortions in emergency situations will continue to need to be available,” Sepper says.

‘Just the beginning’

Whatever the outcome in these cases, the first EMTALA lawsuits are “just the beginning,” says Greer Donley, a law professor at the University of Pittsburgh who focuses on abortion rights.

The Texas case serves as a potential test for other conservative states to challenge the Biden Administration’s guidance or actions on abortion, Donley says. The federal guidance could be set as precedent and spark copies of lawsuits if the judge stops it.

The Idaho case, on the other hand is an opportunity for the Biden Administration to experiment. Advocates of reproductive rights have called on the Biden administration to increase its efforts to ensure abortion access. This is especially true around EMTALA.

No matter how lengthy the case is, or who wins it, legal experts agree that lawsuits can still be a powerful messaging tool for the Biden Administration. “These lawsuits allow the Biden Administration to continually highlight a very unpopular part of abortion bans right now,” Donley says, “which is that they’re harming maternal health.”

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