By Greg Freeman
EXECUTIVE SUMMARY
Emergency departments may be the scene of legal disputes regarding access to abortions. Differing laws in neighboring states may be the source of some disputes.
- EMTALA will protect care necessary to save the pregnant patient.
- The Office for Civil Rights emphasized HIPAA protects information related to reproductive care.
- Plan now for how to respond to subpoenas related to this issue.
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, sending the issue of abortion rights back to the states, could lead to difficult legal situations for some EDs. Risk managers should consider their state laws and plan for potential issues.
One of the first issues to consider is how laws restricting abortion intersect with EMTALA, says Deborah L. Gersh, JD, partner with Ropes & Gray in Chicago. EMTALA may be used as a shield in some circumstances in which a woman is provided care that could, at least under some interpretations, violate a state’s laws restricting abortion access.
“There is a presumption that when someone comes to the emergency room, they want to live. In that scenario, it is clear that you can address an ectopic pregnancy, and you can take action to protect the life of the mother,” Gersh says. “Legal debates may arise over clinical decisions and quality of life, but the administration has made it clear that the burden of proof will not be with the doctor. It will be with someone who is trying to allege that the treatment was not necessary.”
For example, an issue may arise if a woman seeks treatment for an attempted self-induced abortion or injuries from an abortion provided by a non-professional.
“In that situation, you have the obligation to save the life of the mother, and if that requires medically induced abortion, surgically performed completion, I am confident that providers can and will do what is necessary to save the mother,” Gersh says. “Again, EMTALA would come into play, and there is the presumption that the mother must be saved.”
HIPAA Still Applies
Privacy also must be considered. The HHS Office for Civil Rights (OCR) released new guidance after the Dobbs decision regarding its relationship to HIPAA.1 OCR noted federal law and regulations protect patient information related to reproductive healthcare as well as how medical information is protected on personal devices. The guidance emphasized covered entities can use or disclose PHI without an individual’s signed authorization only in circumstances expressly permitted by HIPAA.
OCR also clarified disclosures for any purpose other than directly related to the provision of healthcare to an individual are permitted only in specific circumstances described in the rule. This clarification was intended to address concerns over disclosures to law enforcement about women seeking or obtaining abortions.
“OCR made it clear that if someone comes in for an abortion, for whatever reason, it is not the right of a nurse or healthcare provider — let alone the obligation — to report that,” Gersh says. “That is designed to avoid a whistleblower situation where the hospital is in a state that restricts abortions, and someone wants to report the woman for seeking one. You can’t do that now.”
Subpoenas requesting such information may be more difficult to address, Gersh says. Hospitals should develop a process for responding to such subpoenas. The response may depend largely on how state laws agree or differ. One state restricting abortion may demand information about a patient who crossed into a less restrictive state for an abortion, but that state’s laws may allow the hospital to ignore the out-of-state subpoena.
“Some of that will be taken out of the hands of the healthcare entity. We don’t know yet what position the courts will take on some of these disputes that inevitably will arise,” Gersh says. “I do think that a hospital should have a clear process for how to handle it, and that should be founded on your obligation to protect the privacy of the patient. At a minimum, a request has to be specific to a patient and event, rather than a broad request, and then the battle lines will be drawn.”
Some states are trying to impose extraterritorial criminal laws to prevent a healthcare provider in another state from providing an abortion to a woman from that restrictive state. This raises the question of whether a provider in Illinois, for instance, could be criminally prosecuted for providing an abortion to a woman from Missouri, says Joan S. Anderson, JD, partner with McGuireWoods in Charlotte, NC.
“There is a serious question about whether that provider could be charged, especially if they entered the state of Missouri for whatever reason, such as a vacation or visiting family,” Anderson says. “There is little ground right now for a state to enforce its laws on a resident of another state, but we do think the envelope is going to be pushed.” Even if a successful prosecution would be unlikely, a provider could be put through an expensive and public ordeal, she notes.
The issue of civil liability is less settled, Anderson says. In Texas, where nearly all abortions are illegal, the law allows anyone to sue someone civilly for providing, aiding, or abetting abortion. The definition of adding and abetting is unclear, so it might apply to a doctor who helps a patient go to another state for abortion.
“With such a politically charged issue, this could vary from court to court and judge to judge. You might have a judge in North Carolina who says there is no way you have the power to enforce Texas state law here, while another judge might say you can do it because the injury occurred in Texas,” Anderson says. “All of these things will take time to work out, and in the meantime, they can cost providers a lot of time and money. No one wants to be the test case.”
REFERENCE
- Department of Health and Human Services Office for Civil Rights. HHS issues guidance to protect patient privacy in wake of Supreme Court decision on Roe. June 29, 2022.
SOURCES
- Joan S. Anderson, JD, Partner, McGuireWoods, Charlotte, NC. Phone: (704) 343-2011. Email: [email protected].
- Deborah L. Gersh, JD, Partner, Ropes & Gray, Chicago. Phone: (312) 845-1307. Email: [email protected].
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, sending the issue of abortion rights back to the states, could lead to difficult legal situations for some EDs. Risk managers should consider their state laws and plan for potential issues. One of the first issues to consider is how laws restricting abortion intersect with EMTALA.
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