HHS: States Must Allow Emergency Abortions

The agency says a 1986 law overrides state restrictions.

AP (“Biden admin: Docs must offer abortion if mom’s life at risk“):

The Biden administration on Monday told hospitals that they “must” provide abortion services if the life of the mother is at risk, saying federal law on emergency treatment guidelines preempts state laws in jurisdictions that now ban the procedure without any exceptions following the Supreme Court’s decision to end a constitutional right to abortion.

The Department of Health and Human Services cited requirements on medical facilities in the Emergency Medical Treatment and Labor Act, or EMTALA. The law requires medical facilities to determine whether a person seeking treatment may be in labor or whether they face an emergency health situation — or one that could develop into an emergency — and to provide treatment.

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the agency’s guidance states. “When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

The department said emergency conditions include “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.”

While I don’t know that I’ve ever heard of EMTALA by name, I’ve long been aware of the requirement that hospitals provide emergency services irrespective of a patient’s ability to pay. EMTALA, passed in 1986, is the law that made that a requirement and put other strictures on the ability of hospitals to “dump” indigent or uninsured patients. As to the obvious question Where does the Federal government get the Constitutional authority to impose this requirement on private hospitals? it only applies to those that participate in the Medicaid program; presumably, that’s just about all hospitals.

While one might expect legal challenges from states that this is a back-door way around the Supreme Court decision that finally allows them to regulate abortion as they please, it’s essentially a non-issue.

Currently, even the states with the most stringent bans on abortion do allow exceptions when the health of a mother is at risk, though the threat of prosecution has created confusion for some doctors.

[…]

Mississippi’s trigger law, which went into effect Thursday, says abortion will be legal only if the woman’s life is in danger or if a pregnancy is caused by a rape reported to law enforcement. It does not have an exception for pregnancies caused by incest.

When asked about the Biden administration’s new guidance, Michelle Williams, chief of staff to Mississippi Attorney General Lynn Fitch, pointed to the existing exception in Mississippi’s abortion law.

“Mississippi’s law already makes an exception for preservation of the mother’s life,” Williams told The Associated Press on Monday. “The Biden Administration’s statement of existing law today is about nothing more than maintaining the false narrative that women’s lives are in danger in order to appease his base.”

POLITICO (“Biden admin looks to protect doctors providing emergency abortions, and warn those who don’t“) adds:

States that prohibit abortion allow exceptions to protect the life of the mother, but many physicians feel the laws are too vague or narrow to allow doctors to use their best judgment, and they fear they could be forced to defend their care in court and possibly face lengthy prison sentences for ending a pregnancy in the context of a health emergency.

Providers don’t have to sit and wait for their patients’ condition to worsen or become life-threatening to be able to offer an abortion, the federal health officials emphasized Monday, adding that doctors will be legally protected if the patient has a condition that could seriously impair but not kill them.

The new action — one of the promised pieces included in the executive order Biden signed last week — may not be enough to stem swelling criticism from progressives and reproductive rights’ groups arguing the administration has not acted swiftly or aggressively enough to protect abortion rights and has largely focused on calling on people to vote in the midterms election.

Yet many believe the stronger EMTALA guidance could make a real difference.

“Most doctors are scared out of their minds right now because the threats they face are so severe and scary,” said Greer Donnelly, a law professor at the University of Pittsburgh who focuses on abortion rights. “But the government can say: You don’t just have the right to provide an abortion to someone having an emergency, you have a responsibility to do so. And even if you’re an anti-abortion doctor who doesn’t want to do it, it doesn’t matter. The hospital has to provide the patient with someone else who is willing to do it.”

Donnelly emphasized, however, that this guidance will have little impact unless it’s paired with tougher federal enforcement. Though the onus is on patients to file complaints that their right to emergency care was violated, and enforcement of the law outside of the abortion context is often spotty, the federal government could bring lawsuits against hospitals or individual doctors who don’t comply.

A right to an emergency abortion that’s enforceable only by civil suit after the fact is hardly a right.

FILED UNDER: Healthcare Policy, US Politics, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tony W says:

    A right to an emergency abortion that’s enforceable only by civil suit after the fact is hardly a right.

    Insert parallels to the gun debate here, despite obtaining a gun rarely, if ever, being an emergency, and watch the Right spin in circles.

    3
  2. Daryl and his brother Darryl says:

    I imagine that this SCOTUS would be willing to eliminate the 1986 law by fiat.

    5
  3. KM says:

    Here’s the problem with this: EMTALA states only that a patient must be stabilized at the time of the emergency, not treated or cured. Stabilized has a specific meaning; you’d be surprised what you can be suffering from and still be considered medically stable. Their obligation to you is to prevent immediate death, not necessarily deal with the underlying issue as stabilization offers them the option to transfer your care to a different institution that ideally might better suit your needs….. or in this case, give wiggle room to an institution that doesn’t want to offer those services. Remember, EMTALA has always been in play in Catholic hospitals that did not allow what they consider abortions but instead packed you up and sent you elsewhere to have it taken care of.

    So if you are crashing because of an ectopic or other dangerous pregnancy condition, it doesn’t necessarily mean they’ll give you the D&C you need to live. They’ll treat the crash, not the cause – you’ll get care for the cardiac arrest, the blood loss but not the thing causing the crisis in the first place. Hell, there have been cases where actual sepsis has happened due to them only doing crisis-care; I will refer you to Savita Halappanavar who was technically being cared for while being denied the medical procedure that would have saved her.

    I know if this is a fantastic legal fig leaf for doctors who care and don’t want patients to suffer. It will indeed help those in crisis. However its not going to do much to treat me for the cardiac arrest the sepsis caused and then expect me to be able to travel to a blue state to finalize treatment. Once you are stabilized and out the door, you aren’t their problem even if you are going to die a few hours later trying to reach actual medical care.

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  4. JKB says:

    Smoke for the news cycle. An ectopic pregnancy is not a pregnancy that can be carried to term as the fertilized egg implantation is not in the uterus and is a life threatening condition to the woman. Someone, say a journalist, please cite the abortion law in some state that includes an ectopic pregnancy removal as being denied. It’s just a talking point.

  5. KM says:

    @JKB:
    Kindly tell that to Arizona, who’s recently blocked “personhood” law specifies “fertilized eggs, embryos and fetuses ” and not viable pregnancy. In that case, the fertilized egg would still count – in fact, one of the reasons it was blocked was BECAUSE of this issue and the fact that the law doesn’t clearly state what happens in this case. 4 other states have similar laws.

    It’s really interesting how “life begins at conception you murderers!!!” has swiftly morphed into “well, it ‘s not really a pregnancy if it’s not viable so go ahead” now that rubber has hit the road. All those personhood and no exception bills are starting be political dead-weights. Complain about talking points all you want but y’all changed tune PDQ on this one and it will only get worse as it goes on

    16
  6. Rick DeMent says:

    @JKB:

    While it may not explicitly state anything about ectopic pregnancies the issue is that doctors are not provided with explicit language on when the abortion procedure would be acceptable. This will mean it will be hard to find a doctor to do the procedure without explicate guarantees that they won’t be prosecuted.

    It might be just a talking point to you, but a Doctor might be looking at not being able to practice or jail time.

    7
  7. Thomm says:

    @JKB: maybe not an ectopic, but pretty life threatening:
    https://www.wkyc.com/article/news/local/ohio/ohio-gov-mike-dewine-no-comment-abortion-ban-forced-a-child-to-indiana/95-8e1e1d46-ca0b-4645-a538-f1d583b1ca79
    Guess a 10 year old should have just kept her legs closed, amirite, chud?

    5
  8. Jim Brown 32 says:

    @JKB: So what? Does life begin at fertilization or not?

    5
  9. Scott says:

    Can’t wait for the personhood laws.

    Want the legislators explain why all the assisted reproduction facilities (e.g. IVF) have to be shut down.

    Then this just the start:

    Pregnant woman says her fetus should count as a passenger in HOV lanes. She got a ticket

    Also claiming dependent status will be tested.

    1
  10. CSK says:

    Re ectopic pregnancies: Back in 2019, someone in Ohio introduced a bill that would make it mandatory for doctors to remove the embryo from the Fallopian tube and “reimplant” it in the uterus. This can’t be done.

    That bill, or provision, seems to have been quashed. Thankfully.

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  11. Stormy Dragon says:

    @JKB:

    An ectopic pregnancy is not a pregnancy that can be carried to term as the fertilized egg implantation is not in the uterus and is a life threatening condition to the woman.

    Is it a life threatening condition as soon as it’s detected, or only once the woman is actually crashing? Are you willing to risk a murder conviction and possibly execution to find out? What happens when a Republican who wants to earn political points “going after abortionists” accuses you of making up ectopic pregnancies to cover up abortions?

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  12. Stormy Dragon says:

    I think the real goal here is to create a situation where Red States politicians who otherwise have no incentive not to try and one up each other coming up with the most draconian abortion bans possible now have to worry about losing Medicare funding and the backlash that would cause when seniors suddenly start having to pay for all their care out of pocket.

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  13. Just nutha ignint cracker says:

    @Daryl and his brother Darryl: Yeah. Declaring EMTALA unconstitutional seems like the logical step under the current circumstances to me.

    1
  14. KM says:

    @Just nutha ignint cracker:
    I’m honestly shocked it hasn’t been alluded to yet. It would please the corporate overlords greatly to be able to dump non-profitable patients again. Like our gracious host, most folks are aware the hospital can’t kick you out if you’re not stable but may not know the specific thing that protects them or it’s details. It would need to be framed carefully but I can easily see MAGA idiots gleefully cheering EMTALA’s demise in order to prevent women from “lying to get abortions”. Remember how people sneered at Obamacare but praised their ACA insurance? That all over again. Once it’s gone and the public realizes what that actually means, it would be too late as any revised version that manages to make it though Congress would heavily favor business and medical debt.

    7
  15. Mu Yixiao says:

    @Just nutha ignint cracker:

    Yeah. Declaring EMTALA unconstitutional seems like the logical step under the current circumstances to me.

    But wouldn’t that invalidate (or open the doors to hard-to-defend-against challenges to) all the other laws that say “if you want our money, you must/musn’t do X”? That would include the Hyde Amendment, among others.

    1
  16. Just nutha ignint cracker says:

    @KM: The fact that declaring EMTALA unconstitutional hasn’t been alluded to shows the ad hoc nature of the actions in the wake of the Supremes’ decision. Nobody was thinking about what comes next (and certainly not evangelical right-to-lifers) because nobody thought that Alito was going to write that decision. It truly was a windfall for the right.

    3
  17. Just nutha ignint cracker says:

    @Mu Yixiao: Another example of what a windfall this decision was on a political level. On the other hand, the Hyde Amendment seems like a dead letter to me right now–still not being able to use Federal funds for illegal-anyway abortions doesn’t seem like much of an additional loss. Still, I’m neither in the market for an abortion nor am I causing anyone else to be, so my musings on the question are just that.

  18. Mu Yixiao says:

    @Just nutha ignint cracker:

    On the other hand, the Hyde Amendment seems like a dead letter to me right now–still not being able to use Federal funds for illegal-anyway abortions doesn’t seem like much of an additional loss.

    It would open up the use of Medicare (Medicaid?*) money to transport anyone to a state where an abortion is legal–and cover the procedure under Medicare. Then some schlub in Texas would have to try suing the federal government for “aiding and abetting”. 🙂

    ====
    * I’m not sure how the funding works for Medicaid, but assume there’s some federal money in there.

  19. Mister Bluster says:

    @Mu Yixiao:..funding

    Unlike Medicare, which is solely a federal program, Medicaid is a joint federal-state program. Each state administers its own Medicaid system that must conform to federal guidelines for the state to receive Federal matching funds. Financing of Medicaid in the American Samoa, Puerto Rico, Guam, and the U.S. Virgin Islands is instead implemented through a block grant. The Federal government matches state funding according to the Federal Medical Assistance Percentages. The wealthiest states only receive a federal match of 50% while poorer states receive a larger match.
    WikiP

  20. Mu Yixiao says:

    @Mister Bluster:

    Thanks. I was too lazy to look it up. 😛

  21. Just nutha ignint cracker says:

    @Mu Yixiao: You’re going to have to explain that “money to transport” thing in more detail. I have a friend on Medicaid here in Washington who can’t get medical procedures that can’t be done locally because he doesn’t drive and took local paratransit to his last colonoscopy because Medicaid doesn’t pay for medical transport (at least that’s what he claimed as the reason).

    Fortunately, we live in a town with a full-service hospital, so he gets pretty good care, but he recently put off a day-surgery procedure for several months because he “didn’t have any transportation” (I reminded him that I DO have a car and still drive after I heard that).

  22. Just nutha ignint cracker says:

    @Just nutha ignint cracker: And either way, the Hyde Amendment prohibits using Federal funds for abortion except to save the life of the mother, or cases of incest or rape, so there’s no place “where abortion is legal” to take the patient to for a funded abortion in most cases anyway.

  23. Mu Yixiao says:

    @Just nutha ignint cracker:

    It’s a theoretical. As I understand it, since Medicaid is administered by the state, if the Hyde Amendment were to be struck down, a pro-choice state could mandate that Medicaid pay for such transportation and procedures.

    I could see CA or WA putting up the funding for that (it wouldn’t be very much, so no hardship for the fund). Enough private companies have already said they’ll provide transportation, that the states might only need to cover the procedure itself.

  24. Gustopher says:

    It’s nice that the Biden administration is rolling out protections for women literally at death’s door (emergency and stabilization means wait until the life of the mother is under immediate threat)

    Now, how about protecting access to mixed use drugs?

    https://www.yahoo.com/news/roe-v-wade-reversal-led-173315355.html

    A common and inexpensive medication used to treat rheumatic conditions is suddenly unavailable to many patients in need.

    Methotrexate is an anti-inflammatory prescription drug that can ease symptoms for patients who have rheumatoid arthritis, lupus, psoriasis and childhood arthritis. It is also used as a cancer drug.

    Now, state-level restrictions on abortions are affecting some people’s access to the medication because is also sometimes used to end ectopic pregnancies, which occur when the fertilized egg implants in the fallopian tube, a condition that is fatal to the fetus and life-threatening to the mother. However, those patients represent about 2% of the 5 million Americans who take methotrexate, according to the L.A. Times.

    The abortion bans go way beyond abortion — they extend to putting the welfare of hypothetical fetuses above the welfare of women.

    1
  25. Mu Yixiao says:

    @Just nutha ignint cracker:

    And either way, the Hyde Amendment prohibits using Federal funds for abortion

    Hence the original stipulation that the Hyde Amendment would fall if EMTALA is struck down.

  26. Beth says:

    @Gustopher:

    My SIL has Rheumatoid Arthritis and reliably votes Republican because something something taxes. She’s about 4o and her arthritis is pretty bad. I’ve been wondering If the stories about methotrexate have her worried. The fact that her sisters marriage might be forcibly terminated or my existence outlawed hasn’t moved her because something something taxes, something woke Democrats.

    @Mu Yixiao:

    I’m confident that the nuts on SCOTUS want to take us back to the Lochner era. I don’t think the smart ones like McConnell do, but the inmates run the asylum in the Republican Party.

    1
  27. Just nutha ignint cracker says:

    @Mu Yixiao: And the origins of my original stipulation that the Hyde Amendment is irrelevant now related to places where abortion is going to be illegal. But yeah, take the victory lap for calling “the fall” of the Hyde Amendment if you need one.

    1
  28. Just nutha ignint cracker says:

    @Mu Yixiao: Washington state rarely, if ever, pays for transportation costs as it is now. I doubt that it would pay for transportation for out of state patients, who incidentally wouldn’t qualify for abortion services from Medicaid anyway, simply because some right-wing nut job judge decided to void the provisions of Hyde for whatever reasons right-to-lifers would want to do that.

    And as to not costing very much, I dunno. The time that I needed to arrange transportation one way to Vancouver (a distance of less than 50 miles) for my colonoscopy, the charge was $195. Luddite was available for the return trip but had another appointment himself that morning. The price for the round trip was $275, so I was grateful for his help.