EMTALA Has Protected Pregnant Patients for Three Decades — Now That Could Be at Risk
July 1, 2024 8 minutes read
Health-preserving emergency care for pregnant women could be up to each physician’s conscience and risk-taking ability after the U.S. Supreme Court debates whether the state of Idaho is exempt from providing emergency abortion care to women who may lose their uteruses or kidneys or suffer other major health problems with delayed abortion care.
Several physicians and researchers express bewilderment that the case about the Emergency Medical Treatment and Active Labor Act (EMTALA) was picked up by the Supreme Court. They say the issue of providing health- and life-preserving emergency healthcare to everyone — regardless of their pregnancy status — should be considered basic, well-ingrained medical practice, as it is in most other nations worldwide.
As of June 14, the highest federal court had not yet issued a decision on whether EMTALA and its requirement for all hospitals that receive Medicare funding to provide stabilizing treatment for pregnant women seen in the emergency department, including abortion care if needed, can apply to states that only allow abortion in the case of a woman who is dying.
“EMTALA always struck me as one of the more straightforward [debates about abortion], or one of the easier ones to work out,” says Eli Y. Adashi, MD, MS, MA, CPE, professor of medical science and former dean of medicine and biological sciences at Brown University in Providence, RI.
“I think even the most extreme pro-lifers are not keen to see women die,” Adashi adds. “I think they understand when women show up in an emergency room, whether with an ectopic pregnancy or spontaneous miscarriage, for example, their life is at stake.”
So, it is perplexing that a state would challenge EMTALA and the Supreme Court would take up the case, he says.
“If EMTALA were deemed to be nonbinding by the Supreme Court, nullified, would you stand there and watch a woman exsanguinate in the emergency room?” Adashi adds. “This strikes me with being incompatible with pledges physicians make when they graduate and take on the profession.”
Adashi wrote an editorial about EMTALA after Dobbs for the Annals of Internal Medicine in February 2023.1
Other researchers and physicians also expressed surprise that EMTALA’s mandate to protect pregnant women could be in question.
“I find this situation we’re in to be astonishing, and it’s bizarre to me, quite frankly, that I would ever write a paper like this,” says Abram Brummett, PhD, an assistant professor in the department of foundational medical studies at Oakland University William Beaumont School of Medicine in Rochester, MI. He is also a clinical ethicist at Corewell Health William Beaumont University Hospital in Royal Oak, MI.
Brummett co-authored an editorial published in May 2024 in the Annals of Internal Medicine, titled, “Why Hospitals Must Provide Abortions in Pregnancy Emergencies.”2
“What we want to do with this paper is, first of all, give a moral argument as to why the Supreme Court ought to rule to uphold EMTALA, and if not EMTALA, then for some other federal legal requirement for hospital emergency departments to provide abortions if medically needed for women who have a severe threat to their life or health,” Brummett explains.
Making quick decisions when treating pregnant women experiencing an emergency is challenging under abortion bans, says Glenn Goodwin, DO, a research director of transitional year residency at Aventura Hospital and Medical Center in Miami, FL. Goodwin also is clinical faculty in pediatric emergency medicine at Children’s Hospital Palms West in Palm Beach, FL.
Emergency department physicians and other doctors in abortion-ban states are experiencing some hesitancy in deciding what to do when faced with pregnant patients where there is no imminent threat of death, Goodwin says.
Cases of pregnant women experiencing medical crises, such as miscarriages that are incomplete, high blood pressure, and others have been reported in studies and lawsuits addressing substandard care for pregnant women in abortion-ban states. One well-known example is a Missouri woman who was refused standard care for her miscarriage crisis at four hospitals before she had to travel out of state for the care she should have received days earlier.3
Goodwin’s research looked at more than 4.5 million pregnancy-related emergency department visits from 2016 to 2020. The study found disparities for women in Southern states, particularly rural areas, when compared with other states. Complications following an abortion occurred in the South seven out of 10 times and were twice as likely to occur in non-metropolitan areas. This appeared to be the result of Southern states already enacting laws limiting abortion access.4
In the post-Dobbs era, these same states have abortion bans that could place women at even greater risk in emergency departments when they are experiencing problems from a self-administered medication abortion or from a miscarriage. The question that the Supreme Court is weighing is whether these women will receive standard care to protect their health and future fertility when they show up in emergency departments in abortion-ban states.
“You run into problems if the woman is in grave danger but you don’t know if she’ll drop dead soon,” Goodwin says. “You have to go through a lawyer or ethics team or legal team to give certain medications or take certain actions, and this new delay could have ramifications.”
Florida emergency departments had not experienced the worst of this post-Dobbs change until 2024 when the state’s six-week abortion ban went into effect, he notes.
“We’ll start seeing the real ramification,” Goodwin says.
Before the Supreme Court overturned Roe v. Wade, doctors could make decisions about abortion care without controversy or asking another body for permission.
“Even the strictest states allowed the fetus to be aborted,” he adds.
Now, some hospitals, which do not want legal risks, in Florida require the emergency physician to call an OB/GYN to get their blessing for providing emergency care to a patient with an ectopic pregnancy, Goodwin says.
“You have to call the OB/GYN; they have to physically see the patient and write the prescription for methotrexate,” he explains. “In places like Miami, there are OBs everywhere, but in rural areas, there might not be an OB for 100 miles. That’s where the ramifications are going to happen — to rural patients.”
Goodwin has always viewed EMTALA as a federal law that supersedes any state mandates.
“All the Dobbs decision said is states can dictate their own abortion laws,” he explains. “If the state’s abortion laws conflict with federal EMTALA laws, then you’re 100% covered by EMTALA.”
The U.S. Supreme Court’s decision to hear Idaho’s challenge to EMTALA has raised concerns, some of which may be exaggerated, Goodwin says.
“I have not heard of a reputable case where a doctor followed EMTALA and was in trouble,” he adds. “Most women get through miscarriage without any problems.”
When Goodwin published a study in 2023 about emergency care of pregnant women, there were concerns about doctors being put in jail for providing emergency abortion care. These fears of legal repercussions have contributed to cases where hospitals and physicians have withheld care when EMTALA would have required it because of fear.3,4
“It’s a misinterpretation and overcompliance of the laws that are doing more damage than the laws themselves,” Goodwin says. “It is people being afraid that is actually causing the damage.”
It is a complicated issue, and doctors are confronted with nonmedical people making medical decisions, leaving women to bear the brunt of it, he adds.
Some recent research has suggested that increasing numbers of OB/GYNs and medical students applying for OB/GYN residencies do not want to practice in abortion-ban states. With the pre-existing problem of obstetric care deserts across many of these same states, this is resulting in women giving birth in emergency departments without an OB/GYN on staff. The problem is that emergency department doctors also are at risk from the same laws that are having a chilling effect on OB/GYNs.5
A survey of 350 OB/GYN residents showed that 17.6% changed where they planned to practice because of the Dobbs decision, and nearly 60% of surveyed medical students said they were unlikely to apply for residency in a state with abortion restrictions, according to the American College of Obstetricians and Gynecologists (ACOG).5
“Say obstetricians leave restrictive states and you have obstetric medical school applicants refusing to train in restrictive states; they may say, ‘I don’t believe in abortion, but I need to know how to do that skill,’” Goodwin says.
“A lot of these states are losing obstetrician prospects because they refuse to train in those states,” he adds. “Anytime there’s any issue or disparity in medicine, it’s the ER that bears the brunt of it. What kind of impact does this have on ER doctors? I know it will make our jobs more complicated if we have less OBs.”
This could lead to emergency department physicians leaving abortion-ban states. They also are stuck in a downward cycle when it comes to providing optimal care to pregnant patients. And whether or not the Supreme Court decides in favor of the federal government’s interpretation of EMTALA, the consequences could be grave for women experiencing pregnancy crises.
“EMTALA says we can’t turn them away, or we have to transfer to a high level of care, but if that high level of care is progressively farther and farther away, then you’ll honestly have more helicopter flights like you see in Idaho,” Goodwin says. “If a woman is bleeding and an obstetrician is 200 miles away, I’m going to call a helicopter — a $20,000 ride.”
This already is happening in Idaho, where the state’s largest hospital said it airlifted six patients to neighboring states for emergency pregnancy terminations over a three-month period — because of the state’s abortion ban.6
If the only criteria for providing a woman with an emergency abortion is that she is dying or certain to die, it will place physicians in an impossible position, Brummett says.
“Doctors say, ‘Does the woman have to be bleeding out on the table in front of me and will imminently die if I don’t act, or what if there’s a 60% chance she’ll die in the next week or two, does it apply?’” he says. “EMTALA says it’s the treating physician who determines whether EMTALA applies, and it’s very deferential to the bedside patient.”
If physicians are not able to make these determinations, then who is?
“Do we form committees that the physician has to present a case to?” Brummett says. “And, again, we’re talking about emergency situations, where we don’t even have time to do those things.”
A federal court had blocked Idaho’s definition of a medical emergency, saying it was too narrow. The state’s law only allowed abortion care if the woman’s life was on the line, and not if her health and organs were under threat. But the U.S. Supreme Court lifted the hold in January 2024 while it considered the case.
If the top court decides to allow Idaho and other states to refuse emergency care to pregnant women whose health is at grave risk, the ramifications will be terrible, Goodwin says.
Plus, how can physicians and hospitals ensure that women being transferred via helicopter will be safe?
“If something happened en route or before the woman arrived at a safe setting, you’d be liable for some serious malpractice, if not worse,” Adashi says. “So, I find it incredulous that anyone would transfer a woman out of the emergency room and out of state.”
REFERENCES
- Adashi EY, Cohen IG. EMTALA after Dobbs: Emergency reproductive health care in the balance. Ann Intern Med 2023;176:268-269.
- Brummett A, Chhabra R, Tailor D. Why hospitals must provide abortions in pregnancy emergencies. Ann Intern Med 2024; May 7. doi: 10.7326/M24-0277. [Online ahead of print].
- National Women’s Law Center. NWLC files EMTALA and sex discrimination complaints on behalf of Mylissa Farmer. Nov. 8, 2022. https://nwlc.org/resource/nwlc-files-emtala-and-sex-discrimination-complaints-on-behalf-of-mylissa-farmer/
- Goodwin G, Marra E, Ramdin C, et al. A national analysis of ED presentations for early pregnancy and complications: Implications for post-Roe America. Am J Emerg Med 2023;70:90-95.
- The American College of Obstetrics and Gynecologists. Training and Workforce after Dobbs: Issue Brief. https://www.acog.org/advocacy/abortion-is-essential/trending-issues/issue-brief-training-and-workforce-after-dobbs
- Luchetta J. Idaho’s biggest hospital says emergency flights for pregnant patients up sharply. NPR. April 26, 2024. https://www.npr.org/2024/04/25/1246990306/more-emergency-flights-for-pregnant-patients--in-idaho
Health-preserving emergency care for pregnant women could be up to each physician’s conscience and risk-taking ability after the U.S. Supreme Court debates whether the state of Idaho is exempt from providing emergency abortion care to women who may lose their uteruses or kidneys or suffer other major health problems with delayed abortion care.
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