In weeks after that The Supreme Court reversed Roe v. Wadedoctors across the country are struggling to navigate new legal conditions when providing care to patients experiencing medical emergencies, including ectopic pregnancy, miscarriages, preeclampsia and other severe pregnancy complications.
Federal health care law already required doctors to treat pregnant people — and all patients — for medical emergencies and provide care to stabilize them, regardless of state laws about specific procedures or the patient’s ability to pay. The Biden administration issued guidance last month, which specifically reminded providers that abortions are included in those scenarios and said doctors are protected if they terminate a patient’s pregnancy as part of emergency treatment, even in a state that now bans the procedure.
But now that new leadership faces its first two legal tests as cases in Texas and Idaho head to court. The results in both cases could have major implications for how doctors understand state abortion laws, whether they can provide emergency abortions even in states that have banned it, and what kind of care pregnant patients can expect in their home countries. states.
The first case comes from Texas, which sued the federal government last month to block the guidelines, claiming they amounted to an “abortion mandate” that illegally sought to prevent the state’s near-total abortion ban. The initial hearing in this case was held on August 18. Separately, the Biden administration’s Justice Department filed a lawsuit against Idaho, which has an abortion law that makes doctors face criminal penalties for performing abortions under any circumstances, including when the mother’s life is at risk. The Idaho case marks the first time the Biden administration has taken proactive steps to block a state’s abortion ban since the fall of Rowe. The first hearing in this case is scheduled for August 22. Both state laws are set to take effect Aug. 25, so the cases could move quickly through the courts before then — and could be appealed to higher courts before a final decision.
At issue is the Emergency Medical Treatment and Labor Act (EMTALA), the law on which the Biden administration has based its guidance since July. The administration is struggling to respond to the Supreme Court decision in Dobbs v. Jackson Women’s Health Org, and was wary of taking action that might lead to judgments that would limiting executive power. And while the president has repeatedly said Congress must act to protect abortions, Democrats lack the votes to pass such legislation in the near future. The administration hoped to use the EMTALA guidance to protect some access to abortion in the absence of federal legislation, so what courts decide in Texas and Idaho could enhance or severely limit the executive branch’s ability to weigh in on the issue in restrictive states.
Here’s what you need to know about how these two cases could affect emergency abortions.
The federal health care law
EMTALA was not originally about dividing state politics into red and blue. When the law went into effect in 1986, it was intended to ensure that patients could get emergency care regardless of their ability to pay.
The law states that emergency rooms must screen patients, and if the patient is in a “medical emergency,” staff must provide treatment that will stabilize the patient. These situations are defined as something that would put the patient’s health in “serious danger” or impair bodily functions unless treated.
When it comes to pregnancy, “we’re talking about things like ectopic pregnancy and incomplete miscarriages where there’s a risk of hemorrhaging and preeclampsia and HELLP syndrome,” says Lindsey Wiley, law professor and director of the Health Law and Policy Program at Law at UCLA. “We’re not talking about a simple abortion-by-choice situation.”
Texas has argued that federal law prevents doctors from performing abortions now prohibited under state law, and that the Biden administration wants to “turn every emergency room in the country into a walk-in abortion clinic.” But the Biden administration, as well as liberal states and medical groups that filed briefs with the court, say the federal government isn’t trying to do that. The guidelines did not add anything new to federal law, they said, but rather reminded hospitals and doctors that the administration would enforce the law on abortion. Hospitals that violate EMTALA could lose access to Medicare payments, which would be a major concern for their financial sustainability.
“EMTALA has been the foundation of emergency medicine in this country for more than 35 years. He was broadly supported by ideologically diverse coalitions and individuals,” said Sky Perryman, CEO of Democracy Forward, which represents a coalition of medical groups that filed ballots supporting the Biden administration in the Texas and Idaho cases. “The federal government is seeking to enforce a long-standing law that says pregnant women and all people have a right to mandatory and urgent emergency care.”
What is considered a health exception?
Currently, abortion laws in all states allow abortions when the life of the pregnant woman is at risk. But these exceptions are often not clearly defined, and doctors have been forced to navigate vague laws with the threat of criminal penalties when trying to determine whether a pregnant woman is in an emergency.
Idaho’s trigger ban, for example, which is set to take effect Aug. 25, has exceptions for the risk of death to the pregnant person or when the pregnant person has reported rape or incest to law enforcement. But these exceptions can only be used as a defense in a criminal trial after someone has accused the doctor of breaking the law — there’s no judgment doctors can make beforehand that would indemnify them if they provide the procedure.
EMTALA has a broader definition of what would be considered stabilization treatment, including policies that are designed to ensure that patients can be reasonably transferred or discharged. But Idaho argues that there is no significant distance between the legal exceptions and what EMTALA would consider a medical emergency. “The argument is strong that federal law preempts conflicting state laws that come into conflict,” said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law. “Ultimately, Idaho argued that there was no conflict between the Idaho law with this extremely narrow exception and the cases in which EMTALA would require doctors to perform abortions, which are also a relatively narrow set of circumstances but broader than simply saving life.” In other words, Idaho argued that its law still allows for relevant exemptions under EMTALA, so its application should not be limited, as the Biden administration has argued.
In Texas, the arguments are somewhat reversed. The Texas law includes exceptions for pregnant women’s health, though doctors said those are still unclear. Texas has pushed to block EMTALA’s abortion guidelines, so there the Biden administration has argued that EMTALA doesn’t require Texas hospitals and doctors to do anything that violates state law.
Texas basically says the Biden administration’s guidelines would make it illegal for doctors in the state to perform abortions in situations that would expose them to criminal penalties under state law. Last year, Texas enacted a ban on abortions after about six weeks, which is enforced through private civil lawsuits, and the ban banning nearly all abortions and adding criminal penalties is set to take effect Aug. 25.
If Texas succeeds, the underlying EMTALA law would remain in place, but it would be a blow to the Biden administration’s reproductive health protection strategy. “They want the guidance out there,” Wiley says. “The guidelines are meant to be a kind of warning shot, as hospitals are currently actively in the process of developing their internal policies and procedures on how they will comply with Texas state law.”
In Idaho, the stakes may be even more immediately felt by patients. If the Biden administration succeeds in challenging the state law, it could ensure that pregnant patients in Idaho have access to emergency abortions. That still wouldn’t allow the majority of abortions to happen in the state, but it would matter to patients in Idaho and elsewhere who face significant health risks. “That would mean that EMTALA shapes the limits of how far states can go with their abortion bans, that they can go that far and pretty far, but emergency abortions will still be available,” Sepper says.
“Just the Beginning”
Whatever the outcome in these cases, the first EMTALA lawsuits are “just the beginning,” said Greer Donley, a University of Pittsburgh law professor who focuses on abortion rights.
The Texas case serves as a potential test for other conservative states to challenge the Biden administration’s guidance or actions on abortion, Donley said. If the judge goes along with the federal guidelines, it could set a precedent or trigger copycat lawsuits.
On the other hand, the Idaho case represents an experiment for the Biden administration. Reproductive rights advocates have encouraged the Biden administration to take more action to protect access to abortion, particularly around EMTALA, and the Idaho case could show whether that will be an effective approach.
Regardless of how long the cases take to reach a conclusion or which side prevails, some legal experts say the lawsuits are still a good messaging strategy for the Biden administration. “These lawsuits allow the Biden administration to continually point to a very unpopular part of abortion bans right now,” Donley says, “which is that they harm maternal health.”
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