FPeople in the United States who have suffered from medical emergencies for more than 35+ years are entitled to stabilizing care in all hospitals. Some times, emergency care can be an abortion. This is because sometimes medical emergencies in pregnancy can lead to abortion being the best option. But that federal protection is now being tested following the Supreme Court’s decision in Dobbs.
The country’s position on abortion has changed from one where it was legally protected to one where state officials seek to block pregnant women from receiving federally-protected and urgently needed emergency care. Their attempts to enforce abortion bans in emergency situations and undermine bedrock principles of emergency medicine are out of step not only with the views of the majority of the American people but also with the expertise of the nation’s medical, health, and hospital communities. The Biden Administration has been in court working to protect pregnant patients from state laws that deprive them of this protection – and its position is on solid legal ground.
In 1986, the Emergency Medical Treatment and Labor Act, (EMTALA) was passed by a bipartisan Congress and signed into law by a Republican President. It requires all hospitals that receive Medicare funds to provide immediate services for patients with urgent medical conditions. This includes active labor. To protect the lives and health of the woman carrying the child, certain urgent conditions may require the termination or expulsion of fetal tissue. This is often the case when a foetus can’t survive despite medical intervention. This is despite the fact that a variety of state initiatives would penalize doctors who perform abortions even under such urgent circumstances. It leaves physicians and patients in a dangerous and untenable position.
The United States Constitution’s Supremacy Clause, and settled case law interpreting it, provides that federal law is the “supreme law of the land” and trumps state law when the two conflict. The following weeks saw the following: Dobbs decision, the U.S. Department of Health and Human Services (HHS) issued a guidance statement reminding hospitals and their medical providers that when abortion is necessary to stabilize a patient’s medical emergency, EMTALA requires that it be offered. Not to be confused with the existing law, but this guidance reiterates certain obligations.
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Texas Attorney General Ken Paxton, along with two other interest groups, immediately attacked the guidance. The suit was filed in Texas federal court to overturn it. Shortly thereafter, in a separate lawsuit, the Biden Administration challenged Idaho’s abortion ban in federal court, arguing that its lack of a health exception unlawfully conflicts with federal protections under EMTALA. The lawsuit argued that the law in Idaho would criminalize doctors for providing abortion in emergency circumstances and force them to choose between complying with state or federal law – a choice where the consequences could involve prison time. (For transparency, we note that one of us, Skye Perryman, leads an organization that represented a coalition of medical and health organizations in filing amicus briefs in support of the government’s position in the Idaho and Texas cases.)
This week, a federal court in Idaho agreed , enjoining Idaho’s abortion law to the extent it conflicts with EMTALA. Deferring to the medical community, the court concluded that “Idaho’s criminal abortion law will undoubtedly deter physicians from providing abortions in some emergency situations,” subjecting “women in medical crisis to periods of serious physical and emotional trauma as they wait to get nearer and nearer to death.” As the Court put it, “DobbsIt did not invalidate the Supremacy clause. Thus, even when it comes to regulating abortion, state law must yield to conflicting federal law.”
But a day before the Idaho decision, a federal court in Texas endorsed Paxton’s attack, preliminarily enjoining the Biden Administration’s guidance interpreting EMTALA in Texas. It argued that the statute covers both pregnancies and their unborn children. The court failed to recognize that in some medical emergency situations, pregnant women may find their desired pregnancy unviable. This equivalence between the value of a nonviable fetus and a woman’s life is quite troubling.
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These cases could be appealed by the Ninth Circuit or Fifth Circuits.DobbsCircuit decisions that relate to abortion will affect the limit of state power. The Supreme Court could be under intense pressure to intervene. The Supreme Court has a veto power, but it is not mandatory. Dobbs purported to “return the issue of abortion to the people’s elected representatives,” it did not allow states to ignore their obligations under federal law. As many legal experts predicted, federal courts would deal with this chaos. DobbsFor years to follow.
Armed by the post-modern post, we are encouragedDobbsIn reality, elected officials are displaying their true colors. Fast forward to today, abortion bans most Americans thought were resolved are being attacked. Many state laws now exclude rape or incest. States are considering laws that do not include health exceptions, and are also removing them from state bans. Some exceptionsThe life and safety of the woman who is pregnant. This is all happening while America is experiencing a maternal-mortality crises. We have the highest maternal mortality rate in the industrialized world. In the United States, women are twice as likely than in other countries to be born in childbirth. Women of color and Black women are particularly affected by the crisis. They are three times more likely than their white counterparts to die due to pregnancy-related reasons. It is clear that this movement to deny emergency care for pregnant women does not aim at life.
The courts should declare that every state must allow abortions when medically required. The citizens have an equal role in holding elected leaders accountable. All elected state attorneys general are responsible for defending the laws as well as legislatures and governors that enact them. Those who not only seek to ban medically necessary abortions but also fight in court to deprive their own citizens of federal protections that save pregnant patients’ lives should be held to account.
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