Lawsuits Seek to Weaken Protections for Abortion Access in Emergencies

by | Apr 22, 2024 | Reproductive Rights

The Emergency Medical Treatment and Labor Act (EMTALA) has recently come to the forefront in the abortion fight. Enacted by Congress in 1986, EMTALA requires U.S. hospitals that receive Medicare funding to give “necessary stabilizing treatment” to people in emergencies, regardless of their ability to pay or whether or not they have insurance. The law states that if a patient arrives at an emergency room (ER) with an “emergency medical condition” (EMC), hospitals must either provide treatment to stabilize the patient or transfer the patient to a medical facility that can.

The law does not explicitly mention abortion or name specific treatments for any emergency medical condition, but can apply to pregnancy complications such as preterm premature rupture of membranes (PPROM), severe preeclampsia and ectopic pregnancies. And soon after the Supreme Court stripped away the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization, the Biden administration issued a memorandum clarifying that EMTALA applies in cases where abortion is necessary to stabilize a patient despite any state abortion ban in place.

Why is EMTALA Important?

A year after Dobbs, The Department of Health and Human Services (HHS) launched two investigations of hospitals that did not offer necessary stabilizing treatment in violation of EMTALA. In this case, a woman suffered from PPROM, which meant her pregnancy was no longer viable. Even though her doctors told her that her condition would rapidly get worse, which could result in infection, hemorrhage, or possible death, the hospital policy informed by Missouri’s state ban prohibited abortion. Another pregnant person sought emergency medical care for an ectopic pregnancy, which is always life-threatening, but was told they would not be treated unless a rupture occurred. And another woman, whose health was threatened by a condition called partial molar pregnancy in which the fetus was unlikely to survive, was denied an abortion because the law would not allow for an abortion unless there was an “immediate threat” to the life of the pregnant person. In that case, even though EMTALA was technically not violated because the woman was transferred to another hospital, she was forced to travel 180 miles to another state to get emergency abortion care.

And we can’t forget the story of Kate Cox, a woman who went to three different Texas emergency rooms over the course of a month and was denied care even though her fetus had been diagnosed with a deadly genetic condition called trisomy 18 and her pregnancy was very likely to end in miscarriage or stillbirth. Although it was determined that her pregnancy was high-risk and her previous surgeries put her at risk for uterine rupture and death, the Texas Supreme Court blocked Cox from receiving an abortion, forcing her to travel to another state to get care. These are only a handful of examples out of the many pregnant people who are being turned away in emergency situations because they need an abortion, in violation of EMTALA.

Importantly, not everyone can travel outside of their state for abortion care, especially in emergency situations when care is needed right away. EMTALA is especially important for low income and people of color, who are hit hardest by abortion restrictions and bans and are likely disproportionately impacted by refusals of care in violation of EMTALA.

Recently, in response to these stories, HHS stated they will take a series of actions to educate the public about their emergency medical care rights and to help hospitals meet EMTALA obligations.

What is the Status of Legal Challenges Involving EMTALA?

This grounds us in the context of two current lawsuits – the question in both cases being whether or not EMTALA requires emergency rooms to provide abortions in emergency situations including when a pregnant person’s health is threatened by continuing her pregnancy.

First, in July 2022, Texas, along with American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and Christian Medical and Dental Association (CMDA), sued HHS saying that the agency’s EMTALA memorandum would force hospitals to provide abortions in violation of state laws banning such care. The federal district court ruled for Texas and said that since EMTALA does not explicitly address how a physician should treat both the pregnant person and “unborn child,” Texas’ abortion law may fill that void. In other words, that court found that Texas was within its rights to continue to prohibit abortion care, even in emergency situations. The Biden administration appealed, and the U.S. Court of Appeals for the Fifth Circuit upheld the district court ruling, preventing the enforcement of EMTALA in Texas, even when doctors in emergency situations determine an abortion is needed.

The second lawsuit is in Idaho and began when the Department of Justice (DOJ) filed suit in August 2022, asserting that Idaho’s state abortion ban violated EMTALA because it did not include an exception for when the pregnant person’s health was in danger. A federal district judge blocked the state’s ban, but an appeals court reinstated it. And just this past December, another panel of the appeals court temporarily blocked the law pending further litigation. The Alliance Defending Freedom – a religious, conservative, anti-abortion and anti-LGBTQ group – on behalf of the Idaho Attorney General, petitioned the Supreme Court to reinstate the abortion ban, which the Supreme Court agreed to do while the case continues. The Supreme Court said it would hear oral arguments on the case in April.

If Idaho wins this case, it would create serious harm to pregnant people. It would amount to the Supreme Court saying that it is okay for pregnant people to risk irreversible injuries like organ failure, stroke, and other life-threatening complications. It would give the power that health care providers should have in making sound medical judgements over to extremist, ideological courts and state legislatures.

But whatever the outcome of this lawsuit, it does not change the fact that pregnant people deserve access to abortion not only in emergency situations, but for whatever reason they choose to. We hope that the Supreme Court will decide in favor of bodily autonomy and the freedom to control our reproductive health decisions, bodies, and lives.