- Following the Supreme Court's decision in Dobbs, the Department of Health and Human Services (HHS) released guidance clarifying that termination of pregnancy would in some cases be the appropriate course of treatment under the Emergency Medical Treatment and Labor Act (EMTALA), and any state law that conflicts with this requirement would be preempted.
- Texas filed suit challenging the HHS guidance, arguing that HHS lacks the statutory authority to exercise supervision or control over the practice of medicine in the state, that the agency's interpretation is not authorized by the EMTALA statute, and that the agency did not go through proper notice and comment rulemaking prior to issuing its interpretation.
- The Biden administration also recently filed suit against Idaho challenging the state's abortion 'trigger law' that does not provide an exception for the health of the pregnant patient, arguing that the state law directly conflicts with EMTALA's requirements and is thus preempted.
Following the Supreme Court's decision in Dobbs, one federal law, the Emergency Medical Treatment and Labor Act (EMTALA), has become a focal point in the Biden administration's efforts to challenge state attempts to restrict abortion access. EMTALA provides that a hospital with an emergency department must provide a medical screening examination to any individual who presents to the emergency department and, if the hospital determines that the patient is suffering from an emergency medical condition, to either stabilize or appropriately transfer that patient. Hospitals and physicians that violate EMTALA risk the imposition of federal civil monetary penalties; possible exclusion from the Medicare program; and civil litigation in federal court from any individual who is "directly harmed" by a violation of EMTALA. A few weeks after the Dobbs decision, the Department of Health and Human Services (HHS) issued updated guidance clarifying that in some cases, termination of pregnancy would be the appropriate course of treatment under the federal law.
The Biden administration's position on EMTALA has precipitated two notable lawsuits. In the first, the state of Texas filed suit against the administration, arguing that EMTALA does not authorize the federal government to compel healthcare providers to perform abortion services. In the second, the Biden administration filed suit against the state of Idaho, arguing that the state's abortion law, which does not provide an exception for the health of the pregnant patient, directly conflicts with EMTALA's requirements and should thus be preempted. The ultimate outcome of these two cases will likely set important precedent that will dictate the extent to which the federal government can utilize EMTALA obligations to curb the impact of state abortion bans.
Dobbs v. Jackson Women's Health Organization
On June 24, 2022, in Dobbs v. Jackson Women's Health Organization, the United States Supreme Court overturned Roe v. Wade and held that there is no federal constitutional right to abortion. In practice, Dobbs returns the question of abortion regulation to the states. According to the Dobbs majority opinion, if "there is a rational basis on which the legislature could have thought that [an abortion law] would serve legitimate state interests," states are "entitled to a strong presumption of validity." Since the Dobbs decision, various states have passed legislation that restricts abortion access. Mississippi, Oklahoma, Texas, and other states already had such laws on the books. Some states, like Idaho, had previously codified 'trigger' laws that were drafted to become effective upon issuance of a judgment by the Supreme Court overturning Roe v. Wade. Other states are holding hearings on the issue.
HHS EMTALA Memorandum
On July 11, 2022, in light of the Supreme Court's decision in Dobbs, HHS issued a memorandum to "remind hospitals of their existing obligation to comply with EMTALA" and reaffirm that federal law protects providers who provide abortion services to pregnant patients experiencing an emergency medical condition.1 EMTALA requires hospitals that participate in Medicare to either stabilize or transfer patients who present to the emergency department with an emergency medical condition. EMTALA defines emergency medical condition to include conditions that can result in placing the "health of the individual ... in serious jeopardy" as well as "serious impairment to bodily functions" or "serious dysfunction of any bodily organ or part." EMTALA also preempts state laws that "directly conflict with the requirements of" the statute.
According to the HHS memorandum, the EMTALA statute requires that all patients receive an appropriate screening, stabilization and transfer (if necessary) "irrespective of any state laws or mandates that apply to specific procedures." HHS notes that "an emergency medical condition may include a condition that is likely or certain to become emergent without stabilizing treatment" and mentions certain emergency medical conditions specific to pregnant patients, including ectopic pregnancy, complications of pregnancy loss, and emergent hypertensive disorders, such as preeclampsia with severe features. HHS further states that if a physician believes a pregnant patient has presented with an emergency medical condition, and that abortion is the appropriate treatment to stabilize such patient, "the physician must provide that treatment" in order to comply with EMTALA. Last, HHS states that "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."
Texas Sues the Biden Administration
On July 14, 2022, Texas Attorney General Ken Paxton filed a lawsuit in the United States District Court for the Northern District of Texas (Lubbock Division) challenging the HHS memorandum on EMTALA's obligations relating to pregnant patients. The lawsuit alleges that the memorandum, which it describes as an "abortion mandate,"is an "attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic."
As to the merits, the complaint argues that EMTALA has never authorized the federal government to compel healthcare providers to perform abortions, and that "EMTALA does not mandate, direct, approve, or even suggest the provision of any specific treatment." According to the complaint, HHS is seeking to amend EMTALA's requirements to mandate the provision of abortion services in certain instances, even though the agency does not have the statutory authority to promulgate regulations that would do so, and even if it did, the agency did not go through proper notice and comment rulemaking in this case. The complaint further argues that the memorandum attempts to "codify a 'legal duty' to provide an abortion" although HHS lacks the statutory authority to exercise "any supervision or control over the practice of medicine or the manner in which medical services are provided." Texas asks the court for a declaratory judgment that the HHS memorandum is unlawful, unconstitutional, and unenforceable, and requests a preliminary injunction prohibiting HHS from enforcing the memorandum.
The Biden Administration Sues Idaho
Idaho's Abortion Law
On August 2, 2022, the Department of Justice (DOJ) filed suit against the state of Idaho over its 'trigger' abortion law. Passed in 2020, the law was written to become effective 30 days after the "issuance of the judgment in any decision of the United States supreme court that restores to the states their authority to prohibit abortion." As the Supreme Court officially issued its judgment in the Dobbs case on July 26, 2022, Idaho's law is set to take effect August 25, 2022.
The law defines "[a]bortion" to mean "the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child."
Under the law, "every person who performs or attempts to perform an abortion commits the crime of criminal abortion." This crime is classified as a felony and punishable by imprisonment for two to five years. It also provides for the six month suspension of the professional license of the health care professional who performs, attempts to perform, or assists in performing, the abortion. A subsequent offense results in permanent revocation of the health care professional's license.
Upon a finding that an abortion was performed, Idaho's law allows the provider to raise an 'affirmative defense', which the provider must prove by a preponderance of the evidence. The law provides for two affirmative defenses:
(i) if the physician determines, using good faith medical judgment, that an abortion is necessary to prevent the death of the pregnant woman; and
(ii) if the woman reported an act of rape or incest to a law enforcement agency and provided a copy of such report to the physician performing the abortion (if the woman is a minor, the parent or guardian may be the one to report the case).
In both such cases, the physician must perform the abortion "in a manner that provides the best opportunity for the unborn child to survive, unless ... termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman."
The crux of the DOJ's complaint is that Idaho's law, in only providing an affirmative defense to "prevent the death of the pregnant woman," directly conflicts with EMTALA and is thus preempted. As mentioned above, EMTALA requires hospitals with emergency departments to stabilize or transfer a patient who presents with an emergency medical condition, and defines emergency medical condition to include conditions that place the patient's health in serious jeopardy, as well as conditions that can lead to serious impairment to bodily functions and serious dysfunction of any bodily organ or part.
DOJ argues that "[i]n some circumstances, medical care that a state may characterize as an 'abortion' is necessary emergency stabilizing care that hospitals are required to provide under EMTALA." Examples of emergency conditions mentioned in the complaint include ectopic pregnancy, severe preeclampsia, and a pregnancy complication threatening septic infection or hemorrhage.
DOJ argues that Idaho's law directly conflicts with EMTALA because the law only provides an exception for the life of the mother, whereas EMTALA requires a hospital to provide stabilizing treatment to patients experiencing a condition that places their health in serious jeopardy. In other words, Idaho's criminal prohibition extends even to abortions that a physician determines are necessary stabilizing treatment that must be provided under EMTALA.
The following example is illustrative: A pregnant patient in Idaho presents to an emergency department with severe preeclampsia. The emergency department physician determines that the patient would suffer severe complications, but would not die, if the pregnancy is not terminated immediately. DOJ argues that under EMTALA, the proper course of stabilizing treatment would be to terminate the pregnancy. However, under the Idaho law, a physician who performs such abortion is at risk of criminal prosecution without an affirmative defense because the life of the pregnant patient was not necessarily at risk.
According to DOJ, because Idaho has criminalized performing abortions in these circumstances, it "directly conflicts with the requirements" of the federal EMTALA statute, and is preempted. As such, DOJ asks the court for a declaratory judgment that Idaho's law is preempted, and a preliminary and permanent injunction against the State of Idaho prohibiting enforcement of its law to the extent it conflicts with EMTALA.
The issues discussed in this alert are just one part of what we expect to be an extended battle in the courts over restrictions on abortion access. The scope of EMTALA's obligations, particularly the extent of its obligation to provide stabilizing treatment for conditions that threaten the health of the pregnant patient, will be at the forefront in states with abortion restrictions that do not provide exceptions for the health of the pregnant patient.
We will be monitoring these and other similar cases in the post-Dobbs landscape, and provide updates as they arise.
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