EMTALA Issues Relating to Abortion post-Dobbs
When a pregnant patient presents to a hospital’s emergency department (ED), EMTALA’s requirement for an appropriate medical screening examination (MSE) includes evaluation of the patient and the unborn child. Notably, however, neither the EMTALA statute nor any of CMS’s EMTALA regulations or Interpretive Guidelines defines the term “unborn child” or mentions abortion as a potential stabilizing treatment for a pregnant patient’s EMC. Rather, with respect to a pregnant patient, EMTALA specifically defines “to stabilize” as “to provide such medical treatment of the [EMC] as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to … [a pregnant woman in active labor], to deliver (including the placenta).”
The EMTALA regulations issued by the federal Centers for Medicare and Medicaid Services (CMS) impose an array of specific requirements and prohibitions governing emergency care, and since EMTALA’s enactment in the late 1980s, EMTALA’s unfunded mandate has posed daunting demands on hospitals and physicians. Recently, the United States Supreme Court’s decisions in Dobbs v. Jackson Women’s Health Organization and Moyle v. United States, as well as the Fifth Circuit’s decision in Texas v. Becerra, et al., have raised substantial questions about whether—and if so, under what circumstances—emergency care providers can perform medical services to stabilize a pregnant patient’s EMC that will have the effect of terminating the pregnancy, but state law limits the performance of abortions and may impose criminal penalties for violations.
EMTALA places its heaviest burdens on hospitals, but physicians also have numerous individual compliance requirements under EMTALA. ED physicians typically make the key EMTALA determinations, including, for example, whether a patient has an EMC; whether the patient’s EMC is stabilized and thus the patient is safe for discharge, or the patient needs to be transferred to another hospital that has the capability and capacity to stabilize the patient; the location to which the patient will be discharged; how the patient will be transported, etc. So, practically speaking, hospital physicians are the heart of EMTALA compliance, and at substantial risk for non-compliance along with their hospitals.
A physician or hospital found in violation of EMTALA may be required to pay civil monetary penalties or, in extreme circumstances, may be excluded from participating in Medicare. Physicians who are potentially subject to EMTALA penalties include ED physicians, on-call physicians asked by ED physicians to assist ED patients, and on-call physicians who refuse to accept appropriate EMTALA transfers from other hospitals. Apart from EMTALA liability, physicians also may face medical staff and state licensing board disciplinary actions based on care they provided (or fail to provide) emergency patients.
Legal Challenges Relating to Interplay of EMTALA and State Abortion Laws Post-Dobbs
On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs, overturning the Court’s 1973 Roe v. Wade decision, which had held there was a federal constitutional right to abortion—although as subsequent decisions established, that right was not unlimited, and states could impose certain types of restrictions. By overturning Roe, Dobbs gave states increased authority to limit abortions, and the national landscape of abortion laws has shifted at a rapid pace. Some states have enacted stricter abortion laws, and others have increased their protection of abortion rights. State law definitions of what constitutes an abortion vary, as do the exceptions permitting abortion in certain situations such as ectopic pregnancies. Ambiguities in the state laws themselves, and also the wide variations among state laws, muddy the scope of hospitals’ and physicians’ duties of care to pregnant emergency patients, especially since federal regulators have interpreted some state abortion laws as conflicting directly with EMTALA’s emergency care requirements. These issues have resulted in federal executive and regulatory pronouncements, as well as litigation testing how federal preemption federal law applies in the context of EMTALA and abortions.
On July 8, 2022, President Biden issued an Executive Order entitled “Protecting Access to Reproductive Healthcare Services,” in an effort to advance his Administration’s reproductive rights policies in the wake of Dobbs. The Executive Order was followed on July 11, 2022, by a letter to healthcare providers from federal Department of Health and Human Services Secretary Xavier Becerra reiterating and reinforcing prior CMS guidance on EMTALA and abortions. The President and Secretary Becerra sought to assure ED physicians and OB/GYNs that any necessary stabilizing treatment provided to a pregnant patient to treat an EMC would be protected under the principle of federal preemption, by stating EMTALA would preempt any conflicting state abortion laws. However, while the July 2022 Executive Order and CMS guidance articulated CMS’s interpretation of relevant EMTALA obligations for hospitals and physicians, those communications did not change EMTALA law.
As anticipated, litigation quickly followed Dobbs, including actions over the relationship between EMTALA and state abortion law. On August 23, 2022, in Texas v. Becerra, et al., the U.S. District Court for the Southern District of Texas issued a preliminary injunction enjoining HHS from enforcing its interpretation of EMTALA in Texas. The Texas District Court held, inter alia, that because EMTALA does not speak to how a physician should balance the physician’s independent obligations to both a pregnant patient and the unborn child, the Texas abortion laws in Texas could fill that void—so there is no direct conflict between EMTALA and the Texas law.
Following the District Court’s decision in Texas v. Becerra, CMS issued the following guidance: “HHS may not enforce the Guidance and Letter’s Interpretation that Texas abortion laws are preempted by EMTALA” and “HHS may not enforce the Guidance and Letter’s Interpretation of EMTALA—both as to when an abortion is required and EMTALA’s effect on state law governing abortion—within the State of Texas or against the members of the American Association of Pro Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA).” On January 13, 2023, the U.S. District Court affirmed its preliminary injunction in an amended final judgment, which, in turn, was affirmed on appeal by the U.S. Court of Appeals for the Fifth Circuit. At present, in determining stabilizing treatment for a pregnant Texas emergency patient under EMTALA, a physician must conform with Texas’s medical emergency exception for abortions in a situation where the pregnant patient’s medical condition is life-threatening or poses a serious risk of substantial impairment of a major bodily function.
Conversely, on August 24, 2022, in U.S. v. The State of Idaho, the U.S. District Court for the District of Idaho issued a preliminary injunction prohibiting Idaho from enforcing a law limiting abortion, to the extent the Idaho law applied to emergency care required by EMTALA. The Idaho District Court reasoned EMTALA requires stabilizing treatment for a pregnant individual, which may include abortion care, in cases where Section 18-622 of the Idaho Code would make performing a stabilizing abortion a criminal offense. A three-judge panel of the United States Court of Appeals for the Ninth Circuit initially stayed the injunction, but shortly thereafter the full Ninth Circuit lifted the stay.
The State of Idaho and the Idaho Legislature challenged the Ninth Circuit’s order in separate petitions to the Supreme Court, the legislature through a petition filed by Mike Moyle, Speaker of the Idaho House of Representatives. In January 2024, the Supreme Court responded to those petitions by allowing Idaho to move forward with enforcing its abortion restrictions and agreeing to review both petitions by granting certiorari before judgment on a consolidated, expedited basis.
By the time of oral argument on April 24, 2024, however, the questioning indicated a majority of the justices had changed their views about expedited review of the case. On June 27, 2024, in a one-sentence order, the Court dismissed the two writs of certiorari before judgment as improvidently granted and vacated the stays it had entered on January 5. That deceptively simple ruling was based on significantly differing factors set forth in the majority opinion and multiple concurrences. All nine justices wrote or joined separate opinions, including two separate dissents.
Justice Sotomayor joined in Justice Kagan’s concurrence on the grounds that “Idaho’s arguments about EMTALA do not justify, and never have justified, either emergency relief or our early consideration of this dispute.” Justice Jackson joined only the part of Justice Kagan’s concurrence that offered a rebuttal to one of Justice Alito’s arguments in dissent, concerning the scope of providers’ obligations to an unborn child under EMTALA.
Justice Kavanaugh and Chief Justice Roberts joined Justice Barrett’s concurrence, which articulated two principal grounds: (1) early Supreme Court intervention was no longer needed, based on the parties’ changed “litigating positions” about certain aspects of EMTALA and the Idaho abortion law; and (2) Idaho had raised a Spending Clause argument for the first time in the Supreme Court, and that argument (which is discussed at length in Justice Alito’s dissent) should be heard by the Ninth Circuit before the Supreme Court considers it.
Regarding the parties’ changed positions, Justice Barrett noted the federal government had “emphatically disavowed the notion that an abortion is ever required as a stabilizing treatment for mental health conditions” (although Justice Alito was not persuaded by this concession), and “clarified that if a pregnancy seriously jeopardizes the woman’s health postviability, EMTALA requires delivery, not abortion.” Moreover, the U.S. had acknowledged “EMTALA requires an abortion only in an ‘emergency acute medical situation,’ where a woman’s health is in jeopardy if she does not receive an abortion ‘then and there.’” Additionally, “federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context.”
In its turn, the State of Idaho had represented to the court that EMTALA “permits physicians to treat each of these conditions [i.e., preterm premature rupture of membranes, placental abruption, and preeclampsia] as conditions for which EMTALA requires an emergency abortion to be available… even if the threat to the woman’s life is not imminent.” Although the Idaho law expressly allows abortion only when “necessary to prevent the death of the pregnant woman,” Idaho represented to the court that, “its exception is broader than [i.e., not as narrow as] the United States fears.”
For these reasons, Justices Barrett and Kavanaugh and Chief Justice Roberts were convinced the Court’s intervention can wait.
Justice Alito dissented, joined by Justices Thomas and Gorsuch. Justice Alito’s dissent enumerates illustrations of EMTALA’s purpose and mandate to “protect the health of both a pregnant woman and her ‘unborn child’” (not either/or, as suggested in Justice Kagan’s concurrence), in both the language and the background of the federal emergency care legislation. Further, according to Justice Alito, “even if there were some ambiguity in the statutory text, we would be obligated to resolve the ambiguity in favor of the State because EMTALA was enacted under the Spending Clause, and as we have held time and again, conditions attached to the receipt of federal funds must be unambiguous… Idaho never consented to any conditions imposed by EMTALA and certainly did not surrender control of the practice of medicine and the regulation of abortion with in its territory.”
Finally, Justice Alito disagreed with the majority’s decision to lift the stay. He and Justices Thomas and Gorsuch agreed with Idaho that lifting the stay will cause the state to suffer the irreparable harm of abrogating the balance struck by Idaho’s legislature “about a difficult moral question… By requiring Idaho hospitals to strike a different balance, the preliminary injunction thwarts the will of the people of Idaho as expressed in law by their elected representatives.”
Justice Jackson separately concurred in part and dissented in part. Although she joined Justice Kagan’s concurrence to agree with Justices Kagan and Sotomayor that the stay should be vacated, Justice Jackson agreed with the three conservatives that the Court should have decided the case on the merits now rather than delay the inevitable.
A return to the Supreme Court may indeed be inevitable, since Moyle leaves significant questions unanswered.
What Providers Can Do in the Meantime
While some state abortion laws impose broad restrictions on abortion, many of those laws also create exceptions for abortions performed to save the life of the pregnant patient and otherwise prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant patient. State laws differ on how those exceptions are determined, so providers will need to review with their legal counsel (1) how their state statutes define what constitutes an abortion; (2) the exceptions to any abortion limitations or prohibitions; and (3) how to document carefully and thoroughly their clinical conclusions regarding the presence of an EMC and the medically necessary stabilizing treatment provided under an applicable exception.
According to DHHS, if there is a direct conflict between EMTALA and state law, EMTALA preempts state law, but DHHS is enjoined from taking this position in Texas. While a physician may have an EMTALA preemption defense to providing abortion services to a pregnant emergency patient in a state with strict limitations on abortions, as well as other defenses based on the scope of the state’s abortion definition and exceptions, the physician still may face some risk of state civil or criminal actions or state licensure actions. Thus, in these scenarios, the treating physician’s documentation is the key to an effective defense. Hospital and physician leaders should work together to develop protocols and documentation guidelines aimed at complying with EMTALA duties when treating pregnant patients in the ED, while also complying with state abortion laws, by documenting why stabilizing treatment doesn’t constitute an abortion as defined by state law (where applicable, e.g., for ectopic pregnancies), or falls within an exception, or otherwise is consistent with state law. As in all medical decision-making and care, thorough documentation of the reasons the care provided was within the standard of care and medically necessary for the patient under the circumstances establishes a strong defense.
Conclusion
Physicians and hospitals will continue to face EMTALA challenges when treating pregnant patients in the ED. However, they may be able to avoid penalties and other liability exposure, such as professional board complaints, medical staff disciplinary actions, malpractice actions, and lawsuits involving EMTALA’s private right of action—by understanding the special nature of those challenges and ensuring they demonstrate their EMTALA compliance through clear, effective policies and documentation practices.
