By challenging EMTALA, Texas is signaling that it is okay with patient dumping—especially when those patients are pregnant.
In the weeks following Dobbs v. Jackson Women’s Health Organization, the case overturning Roe v. Wade and the constitutional right to abortion, the worst fears of reproductive advocates became reality. Trigger bans outlawing abortion services went into effect around the country. Some of these bans did not contain exceptions for “life” or “health.”
And, even where there were exceptions, physicians expressed confusion about how to interpret them. How close does a woman need to be to death before an abortion would be legal? At least one study has already shown an uptick in maternal morbidity as physicians struggled with when to intervene in a woman’s miscarriage. Many anecdotal and journalistic accounts of women suffering poor care in the context of an abortion or miscarriage are now circulating, with more stories expected to surface in the coming days, months and years.
In response to this crisis, one of the measures taken by the Biden administration was to highlight the role of the Emergency Medical Treatment and Labor Act (EMTALA). This law, passed by the Reagan administration, states that any hospital that received Medicare funds must screen and stabilize patients for emergency medical conditions regardless of whether or not a patient could pay. The law was enacted, at least in part, to prevent “patient dumping”—leaving patients without care at the door of the hospital.
EMTALA has implications for the current abortion landscape because patients who have attempted abortion or who are facing a life or health threatening problem with regard to their pregnancy may show up at an emergency room. Following Dobbs, Health and Human Services (HHS) clarified that if a physician believes a pregnant patient has an emergency medical condition, as defined by EMTALA and that an abortion is necessary, the physician should provide that treatment even where state law contravenes. For example, if a pregnant person goes to a hospital emergency room with an ectopic pregnancy, they will likely need an immediate abortion. But if a state law does not allow abortions even when the mother’s health or life are at risk, HHS suggests that the physician act to give the person the care they need and the physician would be protected by EMTALA.
In issuing this guidance, HHS was doing what they should be doing—protecting the lives and health of pregnant Americans in the context of institutional failure to protect pregnant people at the highest levels. But they are facing opposition.
In keeping with the hard line taken by Texas on abortion, Attorney General Ken Paxton filed a suit challenging this EMTALA guidance. The suit argues that the “practice of medicine or the manner in which medical services are provided” cannot be dictated by the federal government. The suit also argues that EMTALA does not preempt state or local law. The suggestion that it is the Texas abortion ban that is making it possible for providers to make the best care is patently false as it is tying the hands of providers and putting patients at risk.
While it is not surprising that Texas challenged EMTALA, from the perspective of caring for pregnant people in Texas, the challenge is a signal that they continue to be willing to sacrifice emergency care for pregnant patients. And as this back and forth continues, both physicians and patients are left in the crosshairs. As the HHS guidance suggests, physicians can use EMTALA as a defense to a state enforcement action or they could bring a federal suit, but this requires a great deal from physicians who are focused on providing services—often life-saving services—in the emergency room setting. Patients who find themselves in this situation, often scared for their own health and life, may now find that their providers are too afraid to give them the care that their best medical judgement suggests.
There is little doubt that the denial of care will already contribute to Texas’ soaring rates of maternal morbidity and mortality.
The case also represents ongoing challenges for the continued fight to access abortion. As the Biden administration seeks to do more, even with the cautious approach that they have taken, they face challenges by conservative leadership willing to undermine people’s lives and health. Many of the people who will be directly impacted are Black or Latina, immigrants or living in poverty. There is little doubt that the denial of care will already contribute to Texas’ soaring rates of maternal morbidity and mortality.
To be sure, EMTALA is not a perfect solution. Its constraints have been documented by many including the American College of Emergency Physicians who have noted that some of this necessary care might create financial strain on emergency rooms. Despite this, EMTALA is a strong statement against “patient dumping” and for a person’s access to healthcare in the midst of a health crisis. Challenging HHS’s statements that people get the care they need in emergency rooms, Texas is signaling that it is okay with patient dumping, especially when those patients are pregnant.