Abortion Back at SCOTUS: Can States Ban Emergency Abortion Care for Pregnant Patients?

Key Takeaways:

• On April 24, 2024, the Supreme Court will hear the second case this term involving access to abortion: Idaho v. United States. At stake in this case is whether the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms, preempts state abortion laws and requires hospitals that accept Medicare to provide abortion care when it is necessary to stabilize a patient’s condition, even when this abortion care violates state law.
• The state of Idaho has an abortion ban that only includes an exception to save the life of the pregnant person. It contends that EMTALA does not preempt its abortion ban because there is no conflict between the state and federal law since EMTALA requires physicians to do everything in their power to preserve the life of both the pregnant person and the fetus.
• The Biden Administration maintains that EMTALA requires hospitals to provide stabilizing treatment, including abortion, to preserve the health of a pregnant person, not only in situations where abortion is the necessary treatment to save a patient’s life.
• This case not only has implications for access to pregnancy-related emergency care, including abortion, but could also have ramifications for a pregnant person’s right to preserve their own health and clinicians’ autonomy to manage pregnancy-related medical emergencies based on accepted standards of care.

Introduction

On April 24, 2024, the Supreme Court will hear the second case this term involving access to abortion: Idaho v. United States, which has been consolidated with Moyle v. United States. At stake in this case is whether the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms, preempts state abortion laws and requires hospitals to provide abortion care when it is necessary to stabilize a patient’s condition, even when this abortion care violates state law. While all state abortion bans have an exception for pregnancies that jeopardize the life of a pregnant person, some do not have an exception that would allow an abortion to preserve the health of the pregnant person. Even in states with health exceptions, the exception might be very narrow and not well defined, leaving significant gaps in emergency medical care for pregnant people. EMTALA, however, requires that hospitals provide stabilizing care to patients with emergency medical conditions, including conditions that may harm their health. According to Department of Health and Human Services (HHS) guidance issued in the wake of the Dobbs decision, EMTALA requires hospitals to provide abortion care to pregnant patients with emergency medical conditions when abortion is necessary to stabilize the patient’s condition. The Court’s decision in this case could impact access to abortion in emergency situations across the country and potentially lay the foundation for future challenges involving state laws granting fetal personhood. This brief explains the arguments presented by Idaho and the Biden Administration in the lawsuit, the potential Supreme Court decisions, and the implications for pregnant people seeking emergency health care in states with abortion bans.

What Is EMTALA?

In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) to prevent hospitals from “dumping” or transferring uninsured patients to public hospitals without consideration of their condition or attempting to stabilize them before they were transferred. The law requires Medicare-participating hospitals – effectively all acute care hospitals – to perform an appropriate medical screening examination to any patient who presents to their dedicated emergency department. If a patient is identified as having an emergency medical condition, the hospital must provide stabilizing treatment within the hospital’s capability or transfer the patient to another medial facility that has the capabilities to provide treatment to stabilize the emergency medical condition.

The law defines an emergency medical condition as: “A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual  (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, serious impairment to bodily functions or serious dysfunction of any bodily organ or part or with respect to a pregnant woman who is having contractions that there is inadequate time to effect a safe transfer to another hospital before delivery or that transfer may pose a threat to the health or safety of the woman or the unborn child.”  The provisions about pregnant women and the unborn child were added to the Act in 1989 in response to reports of hospitals refusing to treat uninsured pregnant women in labor.

The law includes a section that states: “The provisions of this section do not preempt any state or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”

HHS, through its Office of the Inspector General (OIG), may impose a civil monetary penalty on a hospital ($119,942 for hospitals with over 100 beds, $59,973 for hospitals with under 100 beds per violation) or physician ($119,942 per violation). The HHS OIG may also exclude physicians from participating in Medicare and state health care programs if they are found to be violating EMTALA. Individuals who suffer personal harm as a direct result of a hospital’s violation may bring a civil action against the hospital and obtain personal injury damages.

What Guidance Has the Biden Administration Issued About EMTALA?

In September 2021, after Texas implemented its civil abortion ban SB 8, the Centers for Medicare and Medicaid Services (CMS) Center for Clinical Standards and Quality issued guidance titled, “Reinforcement of EMTALA Obligation specific to Patients who are Pregnant or are Experiencing Pregnancy Loss.” While this guidance does not state abortions must be provided if that is the necessary stabilizing treatment, it does state that: “A physician’s professional and legal duty to provide stabilizing medical treatment to a patient… preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment.”

As states were starting to implement abortion bans after the Dobbs decision, HHS issued guidance in July 2022 regarding the enforcement of EMTALA. The guidance clarifies that hospitals and physicians have obligations to provide stabilizing care, including abortion, if that is the necessary stabilizing treatment when a patient presenting at an emergency department is experiencing an emergency medical condition.

On January 22, 2024, the Biden Administration announced a broad plan to educate patients on their right to abortion services in emergency situations and hospitals on their obligation to provide those emergency services.

What Are the Legal Challenges?

After HHS issued their 2022 guidance, two lawsuits were filed in federal courts. The state of Texas sued HHS to block enforcement of the HHS guidance in Texas, arguing that EMTALA does not authorize the federal government to “compel” clinicians to provide abortion care. Texas was joined by religious anti-abortion physician organizations, which argue that the guidance infringes on their conscience rights in violation of the federal Religious Freedom Restoration Act (RFRA) by requiring them to provide abortion care in situations contrary to their beliefs. In another case, HHS sued the state of Idaho to block enforcement of its abortion ban to the extent it conflicts with EMTALA.  The Idaho legislature subsequently intervened to defend the state law. These two cases have resulted in conflicting decisions in the federal district courts and the federal courts of appeal.

In the Idaho case, the federal district court concluded that because the Idaho law did not include exceptions for health or life, the law conflicted with EMTALA. At the time the district court considered the case, the Idaho law did not have an exception for situations that threatened the life or health of the pregnant person. The law only allowed physicians to assert a defense (see box below) to criminal prosecution if in their good faith medical judgment performing the abortion was “necessary to prevent the death of the pregnant woman.” Having an affirmative defense instead of an exception means that a physician could be prosecuted and then would need to assert their defense and would bear the burden of proof to demonstrate that they provided the care to save the patient’s life. The district court blocked Idaho from enforcing the abortion ban to the extent it conflicts with EMTALA while the litigation proceeded.

After the district court issued its decision, the Idaho legislature amended the law changing the affirmative defense to an exception for life. The law now imposes penalties on physicians who perform abortions unless “[t]he physician determined in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.” The State of Idaho and their legislature appealed to the 9^th Circuit Court of Appeals, which initially reversed the district court’s ruling. Later, a full panel of judges from the 9^th Circuit reinstated the district court’s ruling blocking the provisions of the law that conflict with EMTALA. Idaho and the Idaho Legislature appealed to the Supreme Court, which took the case and allowed the Idaho law to be fully enforced while the case proceeds.

The federal district court in Texas reached the opposite decision and blocked HHS from enforcing its EMTALA guidance, but only in Texas. The court highlighted that the HHS guidance states that abortion may be required for medical conditions that are likely to become emergent. Texas law requires that life-threatening physical conditions already be present for an abortion to be excepted from its abortion ban. The court concluded that Texas is likely to succeed on their claim that the HHS Guidance exceeds HHS’s statutory authority: “The Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child.” The court similarly sided with anti-abortion physician organizations on their conscience objections claims, stating that the guidance does not contain any exceptions for clinicians with sincerely held religious beliefs. However, the court did not rule definitively that a religious exemption is required under federal law. The Biden Administration contends that EMTALA requires hospitals, not individual doctors, to provide stabilizing care, and appealed this decision to the 5^th Circuit Court of Appeals. The Court affirmed the lower court’s ruling blocking HHS from enforcing the abortion-related EMTALA guidance. On April 1, 2024, the Biden Administration appealed the 5^th Circuit’s ruling to the Supreme Court, asking the Court to hold this case pending the outcome in the Idaho case and then apply that decision to this Texas case.

What Is the Supreme Court Considering?

The Supreme Court will consider whether EMTALA preempts Idaho’s abortion ban in situations in which terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health, but the state prohibits a physician from providing that care.

The Biden Administration’s position is that EMTALA preempts Idaho’s abortion ban when a pregnant person presents in an emergency room with a condition that threatens their health, and abortion is the standard of care to stabilize the patient. The Biden Administration contends the hospital must provide an abortion when that is the “necessary stabilizing treatment” to prevent lasting harms including sepsis, uncontrollable bleeding, kidney failure or loss of fertility. The Idaho abortion ban is in direct conflict with the requirement of EMTALA to provide stabilizing care and is therefore preempted by EMTALA. The Administration argues: “Many pregnancy complications do not pose a threat to the woman’s life when she arrives at the emergency room—but delaying care until necessary to prevent her death could allow her condition to deteriorate, placing her at risk of acute and long-term complications.” EMTALA creates an obligation to allow the pregnant person, not the fetus, to receive and proceed with treatment.

As evidence that Congress did not intend to exclude abortion care from EMTALA, the Administration  highlights that although the Affordable Care Act (ACA) allows states to prohibit abortion in qualified health plans or refuse to include abortion as a covered essential health benefit, the ACA also states that “[n]othing in this Act shall be construed to relieve any health care provider from providing emergency services as required by State or Federal law, including… EMTALA.”  The Administration maintains that EMTALA mentions a specific form of stabilizing treatment in one circumstance, when a pregnant woman is in labor and having contractions. “But by singling out ‘having contractions,’ EMTALA expands the definition of ‘emergency medical condition’ to include labor which otherwise might not satisfy the [law’s] definition and requires a particular treatment. In identifying a specific stabilizing treatment in that one instance, Congress did not override EMTALA’s general stabilization obligation – or preclude any other necessary stabilizing treatment.”

Idaho argues there is no conflict between EMTALA and Idaho’s Defense of Life Act because EMTALA requires physicians to do everything in their power to preserve the life of both the pregnant person and their fetus. Idaho maintains that EMTALA was enacted to ensure that hospitals do not “dump” uninsured patients, not to create any standards of care, and only requires hospitals to offer treatments to uninsured patients that are available to insured patients. The only form of stabilizing treatment expressly required by the statute is delivering a baby when a pregnant woman with contractions has an emergency medical condition. EMTALA treats an “unborn child” or fetus as a patient, and expressly requires that the fetus of a pregnant woman in labor be delivered.

Idaho contends that EMTALA does not preempt their abortion ban because EMTALA states that it preempts state law only when it contradicts the statute’s express requirements. Idaho further argues that Congress did not intend for EMTALA to preempt state regulation of health care. Idaho points to the Hyde Amendment as further evidence that Congress did not intend EMTALA to require abortion care. If the Biden Administration guidance is implemented, they argue, then hospitals will be required to provide abortions in cases where the hospital cannot use federal funds, as the abortions do not fall within a Hyde exception.

What Would Be the Impact of a Ruling in Favor of the Federal Government?

If the Supreme Court rules in favor of the Biden Administration, hospitals in states where abortion is banned or restricted will be required to provide abortion care in emergency situations to stabilize the health of a pregnant person or they will face monetary penalties (discussed above). This means that, in practice, pregnant patients will be able to obtain abortion care to stabilize their health in hospital emergency rooms throughout the country, even in states with an abortion ban that has only an exception to preserve the pregnant person’s life. This will give clinicians protections to provide this abortion care in states that ban or limit abortion without risking criminal or civil penalties. Many states with abortion bans either have no health exception or a very narrow health exception. In addition, many states do not defer to the doctor’s medical judgment that an abortion qualifies for an exception under state law, which has made clinicians hesitant to provide care that could later be prosecuted and reviewed by a court.

Idaho and other states with abortion bans claim that a ruling in favor of the federal government would limit their sovereign ability to regulate the practice of medicine. In addition, the Christian Medical and Dental Associations claim that the EMTALA guidance “imposes a substantial burden on the many healthcare professionals whose religious beliefs compel them not to participate in abortion”, forcing these physicians to pay a fine for following their sincerely held beliefs. The U.S. Conference of Catholic Bishops claim a ruling in favor of the federal government would prompt many Catholic medical practitioners and entities to opt out of programs covered by EMTALA which in turn would limit public access to health care in the future.

What Would Be the Impact of a Ruling in Favor of Idaho?

Impact in States Where Abortion Is Banned

A ruling in favor of Idaho will maintain the current patchwork of uneven access to medical emergency care for pregnant patients. Pregnant patients needing emergency abortion care in the 14 states that ban abortion and the states that severely restrict abortion would continue to be disproportionately impacted. This is because some states with abortion bans do not have health exceptions and those that do, do not make robust exceptions.

While all states have life exceptions, five states with abortion bans (Arkansas, Idaho, Mississippi, Oklahoma, and South Dakota) do not make exceptions for the health of the pregnant person. In these states, a hospital cannot legally provide abortion as a stabilizing treatment for a pregnant patient presenting with conditions that risk severe and lasting harms, including sepsis, kidney failure and loss of fertility, unless these conditions become life-threatening. And even in states that have exceptions for the health of the pregnant person, because these exceptions are often narrow and vague, pregnant people can still be denied emergency abortion care needed to preserve their health.

Due to the lack of health exceptions or meaningful and clear health exceptions in abortion bans and limits, physicians would continue to be reluctant to provide emergency abortion care. This chilling effect will persist, discouraging physicians from providing evidence-based emergency medical care, even in situations where they cannot prevent the loss of the pregnancy.

While the United States Conference of Catholic Bishops and other Catholic organizations assert in their amicus brief that pregnancy complications can always be safely and ethically treated without intentionally taking the life of an unborn child in a direct abortion, the American College of Obstetricians and Gynecologists (ACOG) and other medical professional organizations illustrate in their amicus brief some of the emergency situations clinicians might encounter and highlight the difficulty they may face in ascertaining whether an exception applies, stating that:

In many of the emergency medical conditions requiring abortion care, the loss of the pregnancy is inevitable. When a pregnant patient experiences PPROM [preterm premature rupture of the membranes] prior to viability, continuing the pregnancy risks serious health consequences including sepsis and death. Pre-eclampsia prior to viability also presents a risk of serious health consequences including seizure, stroke, multiple organ failure, and even death. An inevitable or incomplete abortion—commonly called a miscarriage—can cause excessive bleeding and risk of hemorrhage or infection and fetal or embryonic cardiac activity may remain. Other emergency situations occur precisely because a pregnancy is not viable and will not result in a live birth, like a molar or ectopic pregnancy. In these and other cases, abortion may be required to stabilize the patient.

This presents the second issue, timing. No clinical bright line defines when a patient’s condition crosses the lines of this continuum. At what point does the condition of a pregnant woman with a uterine hemorrhage deteriorate from health-threatening to the point that an abortion is “necessary” to prevent death? When is it certain she will die but for medical intervention?

These are questions that OBGYNs in states that ban abortion are currently facing. In a recent KFF national survey of OBGYNs, six in ten OBGYNs practicing in states where abortion is banned or where there are gestational limits say their decision-making autonomy has become worse since the Dobbs ruling. Four in ten OBGYNs in these states report they have personally felt constraints on their ability to provide care for miscarriage and other pregnancy-related medical emergencies since the Dobbs decision.

Seventeen women who experienced an obstetrical emergency while pregnant in a state with a near-total abortion ban submitted an amicus brief. They claim hospitals are engaging in dumping patients with pregnancy-related emergencies, the exact action EMTALA aims to block, rather than providing stabilizing care. After presenting at emergency rooms, these women were sent home with instructions to come back when their situations became more dire. While the delays in care did not help the fetus, many of them now suffer the health consequences of having their care delayed. These situations would continue to occur if the Supreme Court rules in favor of Idaho

Impact on Emergency Care in States Where Abortion Is Not Banned

In addition to those residing in states with abortion bans, a Supreme Court ruling that EMTALA does not preempt the Idaho abortion ban could also have an impact on people seeking emergency care in other states. Twenty-four states and DC have submitted an amicus brief claiming that allowing states to override EMTALA’s requirement to stabilize patients will drive more patients to amici States and “may result in more crowded waiting rooms, increased delays for urgent healthcare services, and overall strains on many amici States’ healthcare systems.”

Potential Broader Implications for Fetal Personhood

At the heart of this case, Idaho is asking the court to allow the state to recognize and protect the rights of a fetus over the health of the pregnant person. A decision in favor of Idaho, depending on how the court frames its decision, could crack open the door to future cases further recognizing the rights of embryos or fetuses, as did the Alabama Supreme Court’s IVF ruling. For instance, states may seek to mandate specific childbirth methods, such as a C-section contrary to the wish or beliefs of pregnant person to preserve the life of the fetus, or police the behavior of pregnant people to protect the fetus.

Idaho and the Idaho Legislature cite their law which stipulates that, “The people of Idaho recognize the “life of each human being begins at fertilization, and preborn children have interests in life, health, and well-being that should be protected.” The Charlotte Lozier Institute, an anti-abortion advocacy organization, contends in their amicus brief that the Biden Administration is disregarding EMTALA’s “plain text requiring physicians to protect the life of unborn children.” Some lower courts have ruled that hospitals have “dual stabilization requirements” to the pregnant person and the fetus, and the state can direct hospitals to prioritize the survival of the fetus over the wellbeing of the pregnant person.

While states have focused on restricting abortion care, this has broader implications for a pregnant person’s right to make decisions about how they want to manage their own pregnancy including the right to preserve their own health, and clinicians’ autonomy to manage pregnancy-related medical emergencies based on accepted standards of care.