Story at a glance
After the Supreme Court overturned Roe v. Wade, many states across the country enacted bans or severe limitations on abortion.
But under one federal law, the Emergency Medical Treatment and Labor Act (EMTALA), emergency physicians are being encouraged to still provide emergency abortion care.
The Department of Health and Human Services (HHS) sent letters to health care providers across the country affirming that EMTALA preempts any state’s abortion restrictions.
Thousands of emergency room doctors around the country are in an abortion tug of war, faced with a decision to follow a federal law that allows for abortions in life-threatening situations or respect state laws that ban the procedure.
Even though the Supreme Court ruled to overturn Roe v. Wade in June — eliminating the constitutional right to abortion in the U.S. — there is still a decades-old federal law that mandates hospitals and physicians provide screening and stabilizing treatment in emergency situations, including abortion, in order to save a patient’s life.
It’s known as the Emergency Medical Treatment and Labor Act (EMTALA) and it lays out procedures that emergency departments across the country must follow, regardless of a patient’s insurance status or ability to pay. It broadly defines an emergency as a condition that has “acute symptoms of sufficient severity” and if gone untreated could reasonably be expected to place an individual’s health, or the health of an unborn child, in serious jeopardy.
After the Supreme Court ruled Roe was no longer valid, states across the country immediately began rolling back abortion protections. At least a dozen states enacted restrictive laws that outlawed abortion with minimal exceptions, like Missouri, Louisiana, Texas, South Dakota and more.
However, the federal government has attempted to push back by leveraging EMTALA.
In July, the Department of Health and Human Services (HHS) sent letters to health care providers across the country affirming that as frontline providers, EMTALA, “protects your clinical judgement and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.”
“Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the EMTALA statute,” read HHS’s letter.
The agency went on to clarify that emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss and preeclampsia.
Ectopic pregnancies are fairly common — happening in 1 out of 50 pregnancies in the U.S. It’s considered life threatening for the mother and fetus, with abortion a common method of treatment.
However, emergency room physicians are reconsidering their approach. Like in Ohio, which has outlawed abortion after six weeks of pregnancy, or generally when fetus cardiac activity is detected. The law makes no exceptions for rape or incest, but does allow abortion to prevent the death or serious risk to a major bodily function of the pregnant mother.
Any providers that violate Ohio law are allowed to be prosecuted.
It has prompted University Hospitals Cleveland Medical Center to keep an administrator and legal team on call for physicians when questions on whether a planned abortion treatment is allowed under the law, according to Kaiser Health News.
Alison Haddock, board chair of the American College of Emergency Physicians (ACEP), told Changing America that having to second guess clinical judgement is a position no physician wants to be in.
“We have the training to know what’s right for our patients and want to have the ability to do that without having to fear criminal liability or being caught between, if we do one thing we’re violating state law, if we do another thing, we’re violating federal law,” Haddock said.
Haddock also said that ectopic pregnancies are a common diagnosis that have historically had a straightforward treatment plan — surgery or medication that ends the pregnancy.
That’s because ectopic pregnancies occur when a fertilized egg grows outside the uterus, which can cause the fallopian tubes to rupture. It’s considered a life-threatening emergency that requires immediate care or risks the mother’s life.
But with the current wave of abortion restrictions taking over large swaths of the country, Haddock said a historically straightforward process has become complex.
Ectopic pregnancies are just one example of abortions taking place in emergency room situations, with many other instances now at the center of debate.
The biggest issue Haddock sees is the ambiguity in both EMTALA and state laws, which include language like “life threatening” and “unstable” as the point where an abortion could be allowed. But to Haddock, that’s far from clear.
For instance, pregnancy emergencies have varying stages of severity, like when a patient is having abnormal bleeding. In some cases, a simple blood transfusion can save the pregnancy, while for others the bleeding is too heavy and could lead to the mother hemorrhaging and dying if an abortion is not done — with an emergency physician faced with deciding at what point is a patient in a life-threatening situation or pregnancy-threatening situation.
Adding to the complexity, the state of Texas is suing the Biden administration over the legality of EMTALA. Texas attorney general Ken Paxton said the president is seeking to transform every emergency room in the country into a “walk-in abortion clinic.”
The lawsuit alleges that the letter HHS sent to providers back in July goes well beyond simply reminding doctors of their obligations under EMTALA, but also included new requirements specifically related to abortions that didn’t previously exist.
It’s not yet clear how the lawsuit will play out, but press secretary Karine Jean-Pierre responded to Paxton by saying, “it is unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected under U.S. law.”