Federal guidance on life-saving abortions puts doctors in a bind

The Biden administration’s guidance that hospitals are required to provide abortions in medical emergencies despite state bans may be hard to enforce, legal experts say, but nonetheless raises difficult questions for healthcare providers.

There are no clear precedents for resolving conflicts between federal requirements for emergency treatment and state criminal laws restricting abortion, healthcare lawyers say, forcing emergency room doctors in conservative states to make split-second treatment decisions amid a rapidly evolving landscape of potentially contradictory laws.

Mary Ellen Palowitch, a former nurse who works as a non-lawyer advisor to hospitals on compliance issues for the law firm Dentons, said emergency physicians are now in a bind.

“It’s not a place where you want to be calling attorneys and getting permission to perform a certain procedure,” she said.

The U.S. Department of Health and Human Services said last week that emergency healthcare facilities must provide an abortion if needed to preserve the life or health of a mother, even if it would violate state laws.

The guidance pits state laws, many of which went into effect in the wake of the U.S. Supreme Court’s reversal last month of its 1973 Roe v. Wade ruling guaranteeing abortion rights nationwide, against a federal statute known as the Emergency Medical Treatment and Active Labor Act (EMTALA).

EMTALA applies to hospitals that participate in the federal Medicare insurance program, which includes nearly all hospitals. It requires hospitals to “stabilize” anyone who comes to an emergency department with an “emergency medical condition,” defined as one that puts the patient’s health in “serious jeopardy.” If the hospital cannot stabilize the condition, it must transfer the patient to another facility that can.

That threshhold for care is likely at odds with the exceptions most state abortion bans include if the mother’s life is at risk, according to Sara Rosenbaum, a professor of healthcare law at George Washington University.

State laws, she said, can be interpreted to allow abortion only when the mother’s life is in imminent danger, while EMTALA might call for earlier intervention in some cases.

For example, it could require a physician to provide a surgical dilation and curettage, which is the same procedure used for some abortions, to a woman having a miscarriage involving heavy bleeding. Some state bans could be interpreted to require waiting until the bleeding becomes immediately life-threatening.

UNCHARTED LEGAL TERRITORY

Texas sued the federal government last week to block the guidance, calling it an attempt to “transform every emergency room in the country into a walk-in abortion clinic.” It is seeking a judgment that the guidance is unlawful and an injunction blocking its enforcement.

But, legal experts say there are no precedents in court for resolving conflicts between EMTALA and state law.

Some experts say that a general principle known as preemption – that when a federal law directly conflicts with a state law, the federal law wins out – should apply.

And, EMTALA itself includes language stating that it preempts state law that “directly conflicts” with its requirements.

“The law’s pretty clear here,” said Douglas Swill of the law firm Faegre Drinker Biddle & Reath, who advises hospitals on legal compliance issues.

The reality on the ground is more complicated.

For one thing, not everyone agrees that EMTALA can preempt state law. James Blumstein, a healthcare law professor at Vanderbilt University, said the law merely sets forth the strings attached to federal Medicare funding and cannot override state abortion bans, which are criminal laws that do not specifically regulate emergency medical treatment.

Moreover, enforcement of criminal law, he said, is generally left to states and there is a strong presumption against its preemption.

“It is quite a stretch to assert that a doctor…has a duty to break a state’s criminal law and that EMTALA somehow immunizes criminal behavior under state law,” he said in an email.

Further complicating the picture is what means the federal government has to enforce the guidance.

EMTALA allows the government to cut off a hospital’s Medicare funds, though that step, which would often put a hospital out of business, is rare. It also authorizes fines, and allows individual lawsuits against hospitals over violations.

It is not clear whether the law authorizes any more proactive steps.

“One issue which the federal government has not dealt with yet is, must the federal government sit around and wait for somebody to die and a complaint to be filed, or can the federal government take earlier steps to ensure hospitals are in compliance?” Rosenbaum said.

Read more:

U.S. health dept says doctors must offer abortion if mother’s life is at risk

Biden signs executive order on abortion, declares Supreme Court ‘out of control’

Note: The name of the law firm Faegre Drinker Biddle & Reath has been corrected.

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