Why 2 federal lawsuits in Texas and Idaho could protect or threaten emergency abortion care: Yahoo News Explains
Near-total abortion bans are set to go into effect in Texas, Idaho and Tennessee this week following the U.S. Supreme Court’s decision to overturn the federal right to an abortion. Texas and Idaho are involved in separate lawsuits that stem from guidance restated by the Biden administration concerning the emergency care of a pregnant person under the Emergency Medical Treatment and Active Labor Act of 1986. Yahoo News spoke with law professor at Southern Methodist University at Dedman School of Law in Dallas Seema Mohapatra, MD, and law professor at the University of Texas at Austin Elizabeth Sepper to provide some clarity on these lawsuits and emergency abortion care.
Video Transcript
ELIZABETH SEPPER: Both Texas and Idaho have near-total abortion bans about to go into effect. Idaho's law has an exception only for abortions necessary to preserve a person's life and requires that doctors raise that as an affirmative defense. After they've been charged with a criminal abortion, they can argue that the abortion was necessary to save someone's life. And Texas has a fairly similar ban with maybe a slightly broader exception that allows some emergency abortions that might not be lifesaving.
SEEMA MOHAPATRA: EMTALA, the Emergency Medical Treatment and Labor Act, was basically enacted in order to require any hospitals that get any federal funding from providing any medically necessary emergency care.
Early in July, the Biden administration directed the Department of Health and Human Services to kind of investigate or talk about how EMTALA is impacted by states that are passing these abortion restrictions, in the light of Dobbs and Roe v Wade being overturned.
MERRICK GARLAND: In the days since the Dobbs decision, there have been widespread reports of delays and denials of treatment to pregnant women experiencing medical emergencies.
Today, the Justice Department's message is clear, it does not matter what state a hospital subject to EMTALA operates in, if a patient comes into the emergency room with a medical emergency, jeopardizing the patient's life or health, the hospital must provide the treatment necessary to stabilize that patient. This includes abortion when that is the necessary treatment.
SEEMA MOHAPATRA: This was not anything new because EMTALA already requires that if somebody comes in with an emergency condition that they have to be stabilized before they can be left in the hospital.
ELIZABETH SEPPER: Now, emergency medical condition under federal law includes things like serious jeopardy to the patient's health. So this is broader than the Idaho law, for example, which allows only life-saving treatment. That's a little bit narrower, right? There are things that put your health into serious jeopardy that don't yet rise to the level of life-threatening.
Texas's law has an exception maybe somewhere in between, allowing abortions where there's a risk of serious impairment to a substantial bodily function, whatever that is.
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Texas filed this lawsuit to say, well, no, Texas law only allows abortions in situations where a life is at stake. So a narrower array of circumstances. And Texas basically argues that this guidance from the Biden administration changes the law, that it's a new rule that applies to hospitals.
SEEMA MOHAPATRA: What the Department of Health and Human Services sent out, or, you know, the statement, is not an abortion mandate. That's what the state of Texas is calling it, an abortion mandate. It is just restating EMTALA.
If the doctor is concerned that they're going to be in Texas, face criminal charges, or that they're going to face $100,000 in penalties, or that they're gonna lose their license, you can imagine that they might hesitate until that definition-- right up until the life of the person is at risk.
Instead of waiting what the requirement under EMTALA is, is that, you know, if you have an emergency condition, you need to stabilize that condition. You do not have to wait till somebody is literally, you know, you're preventing death.
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SEEMA MOHAPATRA: So the Justice Department filed a suit to block Idaho's law. And the theory of that case is that it violates the Emergency Medical Treatment and Labor Act, EMTALA. And basically, the government's position is that the way that EMTALA defines emergency medical care is broader than what the State of Idaho is allowing. Its broader than just treatment to avoid death.
So it includes treatment that would be necessary, that if a person's health is in serious jeopardy, there's gonna be any kind of serious impairments to bodily functions, an organ, for example, rupture of uterus which are internal organs that could be possible for when you are in-- having an atopic pregnancy or some kind of emergency situation like that.
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Generally, EMTALA would preempt state law in that, you know, in terms of our legal rules of preemption, we would assume that EMTALA would be more protective of patients would preempt state law. This is, however, a question that is gonna be fought in federal courts.
At the end of the day, the people that are at risk is any pregnant person, not only pregnant people that might be seeking an abortion, pregnant people that have wanted pregnancies that are suffering from complications where an abortion would be the only way to, you know, stop bleeding, to make sure that it's not a ruptured internal organs. In a state where you have to wait basically until the pregnant person is almost dead in order to have that procedure, those people's lives are gonna be at risk.
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