The Supreme Court must maintain pregnant people’s right to receive emergency medical care—including abortion.
“My God, what freedoms will you take away next,” President Joseph R. Biden implored of those attending his 2024 State of the Union address, referencing efforts by Congress to take away the reproductive rights of pregnant people.
To illustrate the stakes of restrictive reproductive laws, President Biden introduced Kate Cox, a Texas mother forced to drive hundreds of miles for a medically necessary abortion after receiving a diagnosis typically fatal to the fetus and life-threatening to the mother. Cox served as both an example and a threat as President Biden addressed the U.S. Supreme Court justices directly: “In its decision to overturn Roe v. Wade, the Court wrote, ‘Women are not without electoral or political power.’ You’re about to find out just how much you were right about that.”
Perhaps these words will echo in the minds of the justices as they hear oral arguments in cases that could have profound consequences for access to reproductive health care. The Court faces a docket that includes multiple abortion-related preemption cases. Most pertinently, Idaho v. United States is a suit brought by the U.S. Department of Justice that seeks to block enforcement of Idaho’s Defense of Life Act (DLA), claiming the state law is preempted by the federal Emergency Medical Treatment and Labor Act (EMTALA).
Congress enacted EMTALA with bipartisan support in 1986, responding to both empirical evidence and sensational incidents of “patient dumping,” or the practice of for-profit health care facilities turning patients away or transferring them to subpar clinics due to their inability to pay for services.
Historically, there has been no “duty to rescue” in the United States—there is no legal obligation to help someone in immediate danger or in dire need of help. The law’s prioritization of the freedom of contract grants physicians, particularly those in private practice, the right to form doctor-patient relationships at will. The United States’s fragmented patchwork of a health care system leaves millions of uninsured and underinsured Americans without the care they need. EMTALA, however, is the only U.S. law vaguely resembling an affirmative right to health care. In fact, some scholars have called it the “closest thing we have in this country to a human rights statute.”
EMTALA is emblematic of U.S. society’s acknowledgement that looking the other way in the face of preventable human suffering is morally unjustifiable. And this acknowledgment does not and should not cease to be true when the person suffering is pregnant. From its inception, Congress designed EMTALA to protect all people—including those who are pregnant. In fact, reports of providers turning away people experiencing pregnancy-related emergencies largely drove the ardent public support for the law.
Under EMTALA, hospital emergency departments must screen for emergency medical conditions any patient requesting treatment at their facilities. The statute defines an emergency medical condition as one presenting symptoms so severe that the lack of immediate medical care could jeopardize the health of the patient or cause serious physical impairment or dysfunction.
If a hospital’s staff members conclude that a patient is experiencing an emergency medical condition, they are required to provide the care necessary to stabilize the patient. The hospital may transfer the patient to another facility only if the expected medical benefits of the transfer outweigh its increased risks.
Failure to comply with EMTALA can lead to patient lawsuits for damages, civil monetary penalties of up to nearly $130,000 per violation, and a medical facility’s potential exclusion from participation in Medicare.
For certain emergency conditions, abortion is a medically necessary stabilizing procedure. In fact, for a variety of life-threatening pregnancy complications, including ectopic and molar pregnancies, it is the accepted standard of care, as supported by the American College of Obstetricians and Gynecologists. Such complications, if left untreated, could cause the pregnant patient to experience “pre-eclampsia, hemorrhage, sepsis, future fertility impairment, and death.” Indeed, the only treatment option for some complications such as ectopic pregnancy is “surgical or medical termination of pregnancy.”
The federal duty imposed by EMTALA to provide this standard of care for complications from pregnancy is now threatened by state abortion bans enacted after Dobbs v. Jackson Women’s Health Organization—which held that the U.S. Constitution does not include a right to abortion care. The conflict that state abortion bans have created with federal law is now coming to a head at the U.S. Supreme Court in the case of Idaho v. United States.
The Biden Administration has insisted that EMTALA obligations supersede state efforts to curb abortion care. A 2021 Centers for Medicare and Medicaid Services memorandum reinforced those obligations and stated outright that a doctor’s legal duty to provide stabilizing treatment to patients seeking emergency medical care preempts conflicting state laws that ban such treatment. “Patients, including pregnant people,” the memorandum reads, “are entitled to the full rights and protections afforded under this federal statute.”
Since that memorandum issued, President Biden has also signed an executive order on protecting access to reproductive health care services. Department of Health and Human Services Secretary Xavier Becerra has also sent letters to health care providers and state governors emphasizing that determinations of emergency medical conditions and appropriate stabilizing treatments reside with doctors using established principles of practice. Fueled by complaints from patients who were turned away and were thus unable to receive the care to which they were entitled under federal law, Secretary Becerra promised rigorous enforcement of EMTALA violations in each letter.
As anti-abortion legislation has proliferated in the post-Dobbs era, states such as Idaho have pushed back on the Biden Administration’s position and are arguing that their abortion bans withstand EMTALA preemption challenges. The federal government sued Idaho days after its trigger ban—the DLA—came into effect, seeking to stop this state law’s enforcement to the extent that EMTALA mandates treatment that the Idaho law prohibits.
The DLA classifies all abortions as felonies, but describes two kinds of circumstances under which doctors would not be convicted for performing them. First, doctors are immune from punishment if an abortion was “necessary to prevent the death of the pregnant woman” but was performed in a way that maximized the chances of the unborn child’s survival. And second, physicians could legally perform abortions in response to cases of rape or incest.
In an earlier phase of the lawsuit, the U.S. District Court for the District of Idaho concluded that EMTALA likely preempts the DLA and agreed to temporarily block enforcement of the law. EMTALA broadly requires that physicians perform abortions to stabilize patients when they reasonably expect the emergency medical condition to jeopardize the patients’ health or impair their bodily functions, parts, or organs. The DLA, on the other hand, narrowly permits abortions only if the doctor finds the procedure necessary to prevent the patient’s death.
Thus, because EMTALA requires abortions in some circumstances for which the DLA forbids them, doctors will find themselves in the impossible position of being unable to comply with both laws.
The district court noted that Idaho’s DLA frustrates EMTALA’s purpose by standing as a barrier to the kinds of emergency medical care that Congress sought to secure. The court determined that the DLA deters doctors from providing this life-saving care by design—that is, by setting up criminal prosecution as the default, and only allowing its carveouts to be used as defenses to prosecution rather than exceptions embedded in the law in the first place.
Importantly, the court also objected to the state law’s requirement that doctors find that an abortion is necessary to prevent the patient’s death. As the court recognized, this is a “medically impossible determination” because in practice, doctors view risk in terms of dynamic probabilities rather than binary absolutes.
Doctors are palpably deterred from providing the standard of care in their practices due to laws like Idaho’s DLA. Studies have shown that despite medical guidelines to the contrary, in the face of legal ambiguity and fear of legal liability, doctors are opting to over-comply with state laws and under-comply with EMTALA. Providers in Texas have reported that some hospitals have stopped treating ectopic pregnancies altogether. Some physicians have turned patients away for fear of intervening too early, only to see the patients return suffering from sepsis. As one maternal fetal medicine specialist remarked, “people have to be on death’s door to qualify for maternal exemptions.”
Even when doctors want to see these desperate patients and respond to their anguish with the compassion and duty that medical and legal obligations require, state laws such as the DLA are obstructing their mission—and even compelling doctors to look the other way. Such neglect causes precisely the human suffering that EMTALA was meant to prevent.
When they hear oral arguments in United States vs. Idaho, the justices of the U.S. Supreme Court must recognize their obligation to enforce the supremacy of federal law and then decide accordingly to ensure that EMTALA continues to protect the autonomy and dignity of all patients. Patients’ rights to be seen, cared for, and saved must be upheld.
