Jul 12, 2022 - Health

Emergency treatment law becomes focus of abortion fight

Illustration of a health plus surrounded by scaffolding.

Illustration: Aïda Amer/Axios

A decades-old law designed to keep hospitals from turning away uninsured patients is becoming a focal point in the post-Roe abortion debate.

What’s happening: The Biden administration on Monday issued new guidance stating that health providers who perform abortions in emergency situations are protected under federal law regardless of what bans are in place in their states, Axios' Oriana Gonzalez reports.

Why it matters: Treating a pregnancy-related medical emergency, or transferring a patient to another facility, could run afoul of state laws that ban or severely limit abortion and make the providers subject to prosecution.

Some of the laws allow exceptions for medical emergencies. But providers have faced questions determining what qualifies as an emergency — and how state laws intersect with the federal Emergency Medical Treatment and Labor Act, or EMTALA.

What they're saying: "Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care," Health and Human Services Secretary Xavier Becerra said.

Go deeper: Hospitals routinely see patients with life-threatening conditions like ectopic pregnancies and preeclampsia that require a rapid response.

  • Many existing and anticipated state laws make abortion illegal, even in situations that would constitute an emergency under EMTALA, said Mary Ellen Palowitch, a senior managing director at Dentons who was EMTALA technical lead at CMS from 2012 to 2020.
  • Concerns about how state laws could put providers in a legal bind intensified after a Texas woman who went to a hospital in April was arrested and charged with murder for an alleged "self-induced abortion." The charge was later dropped.
  • "The focus has been on elective abortions, but these emergency situations happen often," Palowitch told Axios. "Women miscarry and have other emergencies, and it’s going to be up to the health system, hospital leadership and people who work in the emergency departments on how they’ll respond if there's potential civil or criminal liability.”

Flashback: EMTALA dates to 1986 and requires hospitals to treat anyone with a potential medical emergency, regardless of their ability to pay.

  • The Biden administration in September reiterated hospital staff and physicians' responsibilities under the law — and how it specifically applies to people in labor and high-risk deliveries — after Texas passed a law that bars most abortions after six weeks.
  • Hospitals that don't comply could face fines and have its Medicare and Medicaid payments cut off.
  • The Trump administration in 2019 cited the law in reminding hospitals and doctors obligations to treat and screen "every infant who is born alive, at any stage of development," including after an abortion attempt.

Our thought bubble: The patchwork of abortion restrictions will keep emergency medical decisions subject to legal uncertainty, even with the Biden administration's added guidance.

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