Members Only | August 31, 2022 | Reading Time: 5 minutes

Federal law requires some hospitals to give emergency care, including abortions

Republicans are fighting it in court.

Secretary of Health and Human Services Xavier Becerra.
Secretary of Health and Human Services Xavier Becerra.

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Since Dobbs, many of the nightmare scenarios about abortion access have come true. Trigger bans have gone into effect. Healthcare for miscarriages has been delayed. Common prescriptions that can cause abortion (abortifacients) aren’t being filled at pharmacies. 

Despite assurances from anti-choice people, total abortion bans are not making exceptions for emergency healthcare situations or they are so confusing that they’re making doctors scared to perform abortions even when it’s necessary to save the person’s life. 

While abortions should be legal and accessible no matter the reason, it’s particularly dangerous when one can’t get one in a life-or-death situation. There isn’t time to cross state lines or the pregnancy is too far along for a self-managed abortion. 

Any abortion ban will delay care and result in higher maternal mortalities, but fighting against medically necessary abortions guarantees you’re fighting to explicitly let pregnant people die.

The White House has issued guidance that abortions must be performed to save the life of the pregnant person or prevent serious risk, but this week a court sided with a Texas argument against saving lives – of course, celebrated by the “pro-life” movement.

While the response to Dobbs from the current administration has been mixed, a clarifying guidance from the US Department of Health and Human Services is a vital tool in saving pregnant people’s lives. 

In 1986, the Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA). The law required any hospital that accepts Medicare payments to provide emergency treatment to anyone regardless of their ability to pay or their legal status. 

Obviously, this included emergency conditions related to pregnancy, including labor or miscarriage. The EMTALA requires hospitals to provide medical screenings as well as stabilization (or a transfer to a hospital that can provide medical care to accomplish stabilization). 

In July, after Dobbs, the HHS clarified that the federal guidance under the EMTALA required performing an abortion if it’s necessary to save the pregnant person’s life or to prevent serious health risks.

HHS ensured its policy guidance had teeth. 

Secretary Xavier Becerra emphasized that this federal policy preempts state law and that hospitals risk their Medicare payments if they do not comply. Such a policy from the HHS should protect emergency abortion in all 50 states despite individual state law. 

The policy guidance makes it irrelevant if an abortion ban has a carve out for the life of the mother, because such abortions would be required (with the patient’s consent) under federal law as part of “stabilizing” the patient. While they didn’t issue an exhaustive list of pregnancy conditions that would warrant a federally required emergency abortion, “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features” were explicitly stated as qualifying conditions.

Unfortunately, states are challenging the HHS policy guideline in federal court and through total abortion ban legislation. State attorneys general are arguing against saving a pregnant person’s life. 

Keep in mind, in many relevant cases, the choice is between allowing the pregnant person and fetus to die, and performing an abortion to save the pregnant person (or in the case of miscarriage, the fetus is already dead and they still want to let the pregnant person die). 

The remaining cases are a choice between letting the mother die in the hopes that the fetus can be saved and performing an abortion to save the life of the mother. As far as I am aware, the HHS policy guidance doesn’t touch on the maternal fetal conflict when a pregnant person is diagnosed with cancer and might be denied treatment because said treatment could harm the fetus. 

So State attorneys general in Texas and Idaho want to let pregnant people die even though denying abortion won’t save the fetus. 

Ironically, part of their argument that the federal policy guidelines should be enjoined by a judge is that abortion bans in Texas and Idaho, and every other state, have life-of-the-mother exceptions. 

In the opinion written by the Texas court enjoining the HHS guideline, the judge argues that policy guidelines are unnecessary and there is no conflict between state and federal law. 

This is weird given that the Texas attorney general said that the HHS policy guidelines would require Texas doctors to violate state law. 

Texas also argued that the EMTALA did not guarantee access to a specific treatment (and obviously didn’t mention abortion), so the federal government cannot require abortions using that law. 

However, as some legal experts argue, if abortion is the only way to stabilize a patient, requiring such a procedure clearly falls under the EMTALA. There are many cases in which an abortion would be necessary in order to save the life of a patient. Therefore, denying one is tantamount to denying stabilizing care under the EMTALA.

The Texas opinion went further. The language of the EMTALA requires stabilizing the mother as well as the fetus, but it was passed in 1986 when Roe was still law and abortion was legal in all 50 states. 

It’s ahistorical and nonsensical to suggest that the law wouldn’t protect abortion to save the life of the mother since abortions for any reason were legal at the time the law was written. 

Despite that clear rational interpretation, the Texas judge used the mention of the fetus in the law to argue it should protect the mother as well as “unborn children” (his wording – the EMTALA uses “fetus”).

Therefore, not only does this opinion enjoin federal policy guidance. It also elevates the fetus to the standing of a patient under the EMTALA, which supports the argument for the fetus’s personhood. (Again, this is why we need to embrace abortion as self-defense).

The Idaho case is more encouraging. 

Unlike the Texas case, this suit resulted from the DOJ challenging the restrictive Idaho law that, the DOJ argued, violated the federal policy guidelines. Idaho’s trigger ban only allowed abortions when necessary to prevent death, which is more restrictive than the federal policy guidance that requires an abortion be performed if the pregnant person faces death or serious health risk. 

The Idaho judge issued a temporary injunction on Idaho’s trigger abortion ban, because, “Allowing the criminal abortion ban to take effect, without a cutout for EMTALA-required care, would inject tremendous uncertainty into precisely what care is required (and permitted) for pregnant patients.”

The Texas and Idaho cases are ongoing. There are sure to be more lawsuits brought by state attorneys general as well as by the Department of Justice. We will have to wait and see if the HHS policy guidance requiring abortions to prevent death or serious risk stands. 

Do not come away from reading this assuming the conflict is only about abortions in the case of serious risk or that abortions will always be allowed to save the life of the mother. Quibbling over bodily risk or death will absolutely result in pregnant people dying. 

The more restrictive exceptions require doctors to delay care until sure the pregnant person is at risk or until a fetal heartbeat stops. 

They also create confusion for doctors and care providers about when an abortion can be performed under state law. That confusion will result in the delay or refusal of care even when the pregnant person presents with a complication that will cause death. 

Any abortion ban will delay care and result in higher maternal mortalities, but fighting against medically necessary abortions guarantees you’re fighting to explicitly let pregnant people die.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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