By Stacey Kusterbeck
Many ED providers are wondering about the legal ramifications in the aftermath of the Supreme Court’s controversial Dobbs v. Jackson Women’s Health Organization decision.
“It’s important for hospitals to recognize that there is legal risk in delaying or denying medically necessary abortion care, too. Delaying or denying this care puts patients’ health and lives at risk,” says Greer Donley, JD, an associate professor of law at the University of Pittsburgh.1
It is a mistake for ED providers to be solely focused on what their state abortion law says, without also considering the bigger picture in terms of other legal risks and ethical obligations. One important example is an emergency physician’s (EP) obligations under the Emergency Medical Treatment and Labor Act (EMTALA).
“Abortion itself is one of the safest procedures out there — it’s much safer than a pregnancy. The number of times that an ED has to deal with an abortion-related complication is super-rare,” notes Sara Rosenbaum, JD, professor of health law and policy at George Washington University.
More commonly, EDs see pregnancy-related complications that could result in pregnancy loss, or the threat of pregnancy loss.
“Of course, there are situations where the woman loses the pregnancy, and you’ve got to provide treatment,” Rosenbaum says.
For instance, EPs might need to administer methylprednisolone to avoid life-threatening infections. “The issue is what happens when you have pregnancy complications and the intervention is potentially an abortion — or, when you are dealing with the loss of a pregnancy and the use of medical procedures that are comparable to the procedures that you would use in an abortion,” Rosenbaum says.
In states limiting abortion access or banning it outright, EPs understandably worry about legal exposure in those cases. In some cases, patients require a medically necessary abortion to be “stabilized” as defined by EMTALA.
“Under EMTALA, an emergency is not just death, but also severe and long-lasting injury. As a matter of federal law, they can’t just sit and wait until a woman is bleeding to death. If her health is threatened, she’s an emergency under EMTALA,” Rosenbaum explains.
Rosenbaum stresses that regardless of what state law says about performing abortions, if there is a complication, “you have to respond. Your duty is to respond to a medical emergency.”
The central concern involves women who present to EDs with high-risk pregnancies that could be lost or already have been lost. The worry, says Rosenbaum, is “EDs are going to be so freaked out that they refuse to treat — and that’s an EMTALA violation.”
Rosenbaum says it is clear if the emergency is related to abortion, the provider’s duties under EMTALA do not change, regardless of what state laws say. A July 11, 2022, guidance from CMS underscores this important point.2 The guidance states, “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition [EMC] as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.”
“ED providers could face potential liability under EMTALA or state medical malpractice laws if they delay or deny medically necessary abortion care, especially now that the federal government has provided guidance that such care is required,” Donley says.
Both the guidance and a letter to providers from the Department of Health and Human Services (HHS) make clear EPs must provide stabilizing treatment if a pregnant patient is experiencing an EMC.3 “This can include an abortion or other reproductive health services,” says Katie Keith, JD, MPH, director of the Health Policy and the Law Initiative at the O’Neill Institute at Georgetown University Law Center.
The HHS letter emphasizes the examining EP should answer these questions: Has the patient presented with an emergency medical condition? What is the appropriate stabilizing treatment?
“The guidance is designed to help mitigate the chilling effect that many state bans have had, by providing clarity for physicians who may be understandably concerned about how state bans and exceptions apply and will be enforced,” Keith notes.
If an EP concludes a pregnant patient is experiencing an EMC under EMTALA — and that abortion is the stabilizing treatment necessary to resolve that condition — the hospital and EP are obligated to provide that treatment. “Treatment should be provided irrespective of any state laws or mandates that apply to specific procedures, such as abortion,” Keith says.
In general, federal requirements pre-empt conflicting state laws. “HHS confirms as much in its guidance,” Keith adds.
Any state with a more restrictive definition of an EMC, or with a definition that directly conflicts with various definitions under EMTALA, is pre-empted by the EMTALA statute. Despite all this, the matter is not fully resolved. “This issue is likely to be decided in court,” Keith says.
The attorney general of Texas has already sued HHS, arguing the guidance should not pre-empt the state’s civil and criminal abortion bans.4 Generally, EPs should feel bolstered by the EMTALA guidance to provide stabilizing treatment as needed. “But I assume there will continue to be questions, and that compliance and legal staff will be working overtime to help balance patient care alongside federal and state laws,” Keith says.
A Major Legal Error?
It has always been the case that federal law pre-empts any state law that conflicts with the federal law. “EMTALA is federal law and must be followed irrespective of whatever abortion law is passed by a state. Texas doesn’t have a leg to stand on,” according to Robert A. Bitterman, MD, JD, FACEP, physician editor of ED Management. “While CMS’s guidance is correct on EMTALA’s pre-emption of conflicting state laws, it contains a major legal error with respect to women in labor.”
A CMS spokesperson referred ED Management to the July 11, 2022, guidance, which states “regardless of state laws, requirements, or other practice guidelines, EMTALA requires that a person in labor may be transferred only if the individual or their representative requests the transfer after informed consent or if a physician or other qualified medical personnel signs a certification at the time of transfer, with respect to the person in labor, that the benefits of the transfer to the woman and/or the unborn child outweigh its risks. For example, if the hospital does not have staff or resources to provide obstetrical services, the benefits of a transfer may outweigh the risks.”
However, Bitterman asserts this guidance should specify “a woman in labor who has an emergency medical condition that is unstable.”
“The certification that the benefits of the transfer outweigh the risks of transfer, and the appropriate transfer requirements of EMTALA, only apply to patients who have an emergency medical condition that is unstable at the time of transfer,” Bitterman explains.5 In the quoted statement, Bitterman continues, “CMS implies that labor itself is an emergency medical condition, which it has stated explicitly — but incorrectly — in prior EMTALA memos.”6,7
EMTALA contains two definitions of an EMC. The first is a general definition applicable to all patients. The second is a specific definition applicable only to pregnant women with contractions. The general definition of an EMC in EMTALA is “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, or serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”7
The special definition for an EMC in pregnant women with contractions requires that “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.”7
“Note that the word ‘labor’ does not appear in either definition of an EMC,” Bitterman says. Congress deleted the word “labor” from EMTALA’s statutory definition of an EMC in 1989.8 “Thus, a woman in labor has an emergency medical condition under EMTALA if, and only if, the elements of one of the definitions of an emergency condition in the statute are met,” Bitterman adds.
Additionally, the special definition of an EMC for pregnant women with contractions is explicitly written in terms of transfer. A pregnant woman with contractions does not have an EMC, and can be legally transferred without a certification or arranging an “appropriate transfer” under EMTALA, even if she is in labor — provided there is adequate time to effect a safe transfer to another hospital before delivery. Also, the transfer must not pose a threat to the health and safety of the mother or the unborn child.7
“Labor” itself is not defined in the statute. CMS regulations define “labor” as “the process of childbirth beginning with the latent or early phase of labor and continuing through the delivery of the placenta.”9
“Hospitals routinely send patients home from labor and delivery who are in active early/latent labor, which can last for many hours or even days, or transfer them to the hospital where their doctor practices, because their contractions are far apart and irregular, and the cervix not dilated yet. They simply aren’t ready to deliver then,” Bitterman explains.
Bitterman says if CMS was correct, then all these patients would have been transferred (discharges count as transfers under the statute) in violation of EMTALA. “CMS does not, however, cite hospitals for violating EMTALA under these circumstances, precisely because labor in and of itself is not an EMC under the law,” Bitterman argues.
Additionally, mid-level providers in the ED or labor and delivery would not be able to transfer women in labor who did not present with an EMC as defined by the statute, because the certification must be signed by a physician.5
“Hospitals and ED providers want the statute to be applied correctly to avoid unnecessary and costly EMTALA investigations, [Quality Improvement Organization] hearings, civil monetary penalties of almost $120,000 per violation, and civil lawsuits for damages,” Bitterman says. “CMS needs to correct its EMTALA guidance and its EMTALA interpretative guidelines on when ‘labor’ constitutes an EMC under the law.”
REFERENCES
1. Donley G, Chernoby K. How to save women’s lives after Roe. The Atlantic. June 13, 2022.
2. CMS.gov. Reinforcement of EMTALA obligations specific to patients who are pregnant or are experiencing pregnancy loss. Updated July 2022.
3. The Secretary of Health and Human Services. HHS secretary letter to health care providers about emergency medical care. July 11, 2022.
4. Ken Paxton, Attorney General of Texas. Paxton sues Biden admin over its efforts to force abortions in Texas. July 14, 2022.
5. 42 USC 1395dd(c)(1). Examination and treatment for emergency medical conditions and women in labor. Restricting transfers until individual stabilized. Rule.
6. Director, Survey and Certification Group Center for Medicaid and State Operations. CMS S&C-02-14: Certification of false labor. Jan. 16, 2002.
7. 42 USC 1395dd(e). Examination and treatment for emergency medical conditions and women in labor. Definitions.
8. See Section 6211(h)(1)(B) of the Omnibus Budget Reconciliation Act of 1989.
9. 42 CFR § 489.24(b). Special responsibilities of Medicare hospitals in emergency cases. Definitions.
It is a mistake for ED providers to be solely focused on what their state abortion law says, without also considering the bigger picture in terms of other legal risks and ethical obligations.
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