Background

The federal Emergency Medical Treatment and Labor Act (EMTALA) requires that hospitals that accept Medicare payment appropriately provide emergency care to all patients. Failure to comply with EMTALA can result in fines of $100,000 per violation and civil liability.

Following the Supreme Court’s Dobbs decision, overruling Roe v. Wade, the Centers for Medicare & Medicaid (CMS) issued updated guidance reminding hospitals of their obligation to provide emergency care that includes abortions.

The determination of an emergency medical condition is the responsibility of the examining physician or other qualified medical personnel. An emergency medical condition may include a condition that is likely or certain to become emergent without stabilizing treatment. Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features…

If qualified medical personnel determine that the patient’s condition, such as an ectopic pregnancy, requires stabilizing treatment to prevent serious jeopardy to the patient’s health (including a serious impairment or dysfunction of bodily functions or any bodily organ or a threat to life), the qualified medical personnel is required by EMTALA to provide the treatment…

Emergency medical conditions involving pregnant patients may include, but are not limited to: ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features. The course of treatment necessary to stabilize such emergency medical conditions is also under the purview of the physician or other qualified medical personnel. Stabilizing treatment could include medical and/or surgical interventions (e.g., methotrexate therapy, dilation and curettage (D&C), removal of one or both fallopian tubes, anti-hypertensive therapy, etc.).

In other words, hospitals are obligated by, and protected by, EMTALA in performing abortions to stabilize a patient—meaning the patient’s condition won’t worsen when they’re discharged. State laws do not supersede the federal EMTALA and cannot be used to deny emergency care to pregnant patients. “When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” the guidance stated.

Nevertheless, there are some cases where the federal mandate and a state ban will collide. EMTALA tells doctors to act to avoid “serious jeopardy” to a pregnant person’s health. Some state laws ban abortion in any emergency that isn’t a life-threatening condition.

Serious jeopardy to health is a lower threshold than a life-threatening condition, which doctors and hospital administrators have equated to unstable vital signs—literally, at death’s doorstep. This conflict has led to two lawsuits with dramatically different results.

---

---

Texas

A Trump-appointed judge ruled last week that the federal government cannot enforce its EMTALA abortion guidance against Texas.

Texas Attorney General Ken Paxton, joined by two pro-life medical groups, sued the Biden administration earlier this month, claiming that the EMTALA guidance violates several constitutional provisions — the Spending Clause, the “Major Questions” doctrine, the Tenth Amendment — and federal requirements for new rules. The plaintiffs further argue that the guidance imposes “a substantial burden on their religious exercise” in objecting to perform abortions.

The Biden Administration seeks to codify a right to abortion by rogue agency action that requires hospitals and physicians to perform elective abortions in violation of Texas law. Defendants’ unconstitutional Abortion Mandate, ostensibly issued under the Emergency Medical Treatment and Labor Act (EMTALA), is already in effect. It requires doctors and hospitals to choose between performing abortions in violation of State law, their consciences, and their medical licenses, or complying with State law and caring for women as they always have and losing their Medicare and Medicaid funding…

While the EMTALA Guidance claims to simply remind hospitals of existing legal obligations, it does far more. It imposes unprecedented new requirements to provide abortions that have never existed under federal law or EMTALA. The Abortion Mandate requires that a provider perform an abortion if “abortion is the stabilizing treatment necessary to resolve [an emergency medical condition],” which could encompass elective abortions such as in the case of “incomplete medical abortion.” This mandate is novel, unauthorized, and illegal.

U.S. District Court Judge James Wesley Hendrix, appointed by Trump in 2019, agreed with Texas. Hendrix adopted the state’s anti-abortion reading of EMTALA—a law that has required emergency abortion care ever since it was passed in 1986—to set up a conflict between the pregnant woman and the fetus:

EMTALA’s equal obligations to the pregnant woman and her unborn child create a potential conflict in duties that the statute does not resolve. Imagine a mother has a pregnancy-related emergency medical condition where, if she carries the child to term, the child will live but a serious impairment of a bodily function will result, which is, by definition, an emergency medical condition. If the doctor aborts the child, the mother will retain the bodily function. What is the physician’s EMTALA obligation then? The physician could (1) abort the child— prioritizing the health of the mother over the life of the child—despite independent EMTALA obligations to the child; or (2) keep the child in gestation and fail to stabilize the mother’s emergency medical condition, causing her to lose the function. EMTALA provides no answers to this dilemma.

Prior to Dobbs, the pregnant patient would decide what is best for themselves and their families. Now, a Trump judge is empowered to rule that the patient has no right to make the determination to risk their own life or end the pregnancy. Instead, it is up to doctors, who by and large do not want to resolve a question of profound moral and social importance on behalf of their patients.

Under HHS’s reading, if the doctor initially determines that the unborn child does not have an emergency medical condition, the doctor must then close his or her eyes to the unborn child’s health for the remainder of the treatment. This directly conflicts with the doctor’s ongoing duty to provide care for both the mother and the unborn child when stabilizing a pregnant woman. Because the doctor has a duty to both, EMTALA does not require the doctor to introduce an emergency medical condition to one in order to stabilize the other. Again, EMTALA does not say how to balance both interests. It leaves that determination to the doctor, who is bound by state law.

---

---

Idaho

Meanwhile, a separate lawsuit centering on EMTALA’s abortion guidance in Idaho resulted in the opposite outcome: A Clinton-appointed judge ruled that the federal law supersedes the state’s near-total abortion ban.

The lawsuit was brought by the Biden administration earlier this month, seeking to prevent Idaho’s abortion ban from criminalizing doctors who provide stabilizing treatment, including abortion, to a pregnant patient.

Idaho’s abortion law will therefore prevent doctors from performing abortions even when a doctor determines that abortion is the medically necessary treatment to prevent severe risk to the patient’s health and even in cases where denial of care will likely result in death for the pregnant patient. To the extent Idaho’s law prohibits doctors from providing medically necessary treatment, including abortions, that EMTALA requires as emergency medical care, Idaho’s new abortion law directly conflicts with EMTALA. To the extent Idaho’s law renders compliance with EMTALA impossible or stands as an obstacle to the accomplishment of federal statutes and objectives, EMTALA preempts the Idaho law under the Supremacy Clause of the United States Constitution.

In this action, the United States seeks a declaratory judgment that Idaho’s law is invalid under the Supremacy Clause and is preempted by federal law to the extent that it conflicts with EMTALA. The United States also seeks an order preliminarily and permanently enjoining Idaho’s restrictive abortion law to the extent it conflicts with EMTALA.

U.S. District Judge B. Lynn Winmill, appointed by Clinton in 1995, found tj hat the Idaho law creates a conflict with EMTALA and should not be enacted without an exception for emergency abortion care:

Pregnant women in Idaho routinely arrive at emergency rooms experiencing severe complications. The patient might be spiking a fever, experiencing uterine cramping and chills, contractions, shortness of breath, or significant vaginal bleeding. The ER physician may diagnose her with, among other possibilities, traumatic placental abruption, preeclampsia, or a preterm premature rupture of the membranes. In those situations, the physician may be called upon to make complex, difficult decisions in a fast-moving, chaotic environment. She may conclude that the only way to prevent serious harm to the patient or save her life is to terminate the pregnancy—a devastating result for the doctor and the patient.

So the job is difficult enough as it is. But once Idaho Code § 18-622 goes into effect, the physician may well find herself facing the impossible task of attempting to simultaneously comply with both federal and state law. A decades-old federal law known as the Emergency Medical Treatment and Labor Act (EMTALA) requires that ER physicians at hospitals receiving Medicare funds offer stabilizing treatment to patients who arrive with emergency medical conditions. But when the stabilizing treatment is an abortion, offering that care is a crime under Idaho Code § 18-622—which bans all abortions. If the physician provides the abortion, she faces indictment, arrest, pretrial detention, loss of her medical license, a trial on felony charges, and at least two years in prison. Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health—such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, or even death. And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication. All because Idaho law prohibited the physician from performing the abortion…

In short, given the extraordinarily broad scope of Idaho Code § 18-622, neither the State nor the Legislature have convinced the Court that it is possible for healthcare workers to simultaneously comply with their obligations under EMTALA and Idaho statutory law. The state law must therefore yield to federal law to the extent of that conflict.