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How the latest abortion case in front of SCOTUS worries maternity-care advocates

by Erica Hensley May 29, 2024

Will the legal fight over a once uncontroversial law disrupt emergency room care for millions of pregnant women?

The law at the center of the case is the 1986 Emergency Medical Treatment and Active Labor Act or EMTALA. A bipartisan congress passed it and President Ronald Reagan signed it to ensure that all patients have access to emergency services regardless of the ability to pay. EMTALA further dictates that when a person presenting with an “emergency medical condition” arrives at a hospital that participates in Medicare, the hospital is required to offer treatment necessary to stabilize that condition.

The law seemed straightforward — until it wound up before the United States Supreme Court last month in a fight between the Biden administration and the State of Idaho over its near-total abortion ban. 

Following the Supreme Court’s 2022 Dobbs decision overturning the constitutional right to abortion, the administration went to federal court in Idaho, arguing EMTALA trumps Idaho’s abortion law that makes it a crime to provide an abortion except in a handful of circumstances, such as to save the life of the mother or in cases of rape or incest. Idaho contested that reading, arguing it was overly broad and could compel doctors in the state to violate a state law. It also argued that it makes an exception in cases where a patient is dying. While the court is expected to render a ruling later this summer, advocates of maternity care worry that a negative ruling will have far wider repercussions than just access to emergency abortion. In 2019, over 3.5 million women visited U.S. emergency rooms for reasons relating to pregnancy other than for delivery, according to the federal Agency for Healthcare Research and Quality.  In fact, it’s one of the top-10 drivers of ER visits in America.

The conundrum, many physicians argue, is that among some of these pregnant people, an abortion is the equivalent of emergency room treatment not simply in cases where their life is in danger but in cases where, for example, performing an abortion might be the only emergency medical procedure to prevent infertility. Advocates note that emergency rooms have never served as places where routine abortion is performed but rather places where actual life threatening conditions such ectopic pregnancies and hemorrhaging present themselves. 

As is, several of the 14 states with abortion bans make exceptions to prevent a pregnant woman from dying, but explicitly exclude exceptions to preserve their health — which critics say directly conflicts with EMTALA requirements. In these states, a hospital cannot legally provide abortion as a stabilizing treatment for pregnant patients who show up with a range of conditions that pose major health risks, such as sepsis, kidney failure and infertility, unless these conditions become life-threatening, according to research from the Kaiser Family Foundation, known as KFF.  This puts doctors, who sometimes must make lightning-quick decisions, in a bind. 

“And even in states that have exceptions for the health of the pregnant person, because these exceptions are often narrow and vague, pregnant people can still be denied emergency abortion care needed to preserve their health,” the KFF researchers wrote. “This chilling effect will persist, discouraging physicians from providing evidence-based emergency medical care, even in situations where they cannot prevent the loss of the pregnancy.”

Other experts worry a carveout exclusion of abortion in emergency care could have wide-ranging implications for all patients visiting ERs, not just just pregnant ones. “It [EMTALA] essentially is the closest thing we have in this country to a human rights statute,” Sara Rosenbaum, a health law professor at George Washington University, who has written extensively about EMTALA, told Journalist’s Resource. But she says if this challenge is upheld, “states could start carving out HIV care, or mental health, or serious and chronic conditions that they deem too futile or not worth the time and energy of the emergency department.” 

One direct effect already: Due to Idaho’s near-total abortion ban, “healthcare providers are being forced to disregard their patients’ clinical presentations, their own medical expertise and training, and their obligations under EMTALA — or else face criminal prosecution,'' according to court filings before the Supreme Court  from the American College of Obstetrics and Gynecology and other provider groups. 

“This bind has compelled clinicians to leave Idaho for states where they will not face criminal liability for responsibly practicing medicine, depriving many in Idaho who seek reproductive healthcare, including people who are not pregnant and people needing routine pregnancy care, from easily accessing even routine OB/GYN care,” providers wrote. Idaho is already short on obstetrics care, with one of the highest rates of women living in “maternity deserts”. One in five women are more than 30 minutes away from a birthing hospital — more than double the U.S. average.

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