EMTALA and State Abortion Bans

Photo by Manny Becerra on Unsplash Abstract This paper argues that EMTALA and state laws governing abortion access do conflict and that federal law should preempt state law to the extent of the conflict. This paper’s purpose is to give a brief overview of the legal issues, identify practical issues and dangers associated with restrictive abortion laws, and contextualize preemption in the current political moment. The topic here is medical emergency – this paper does not address abortion for either nonmedical or nonemergency reasons. Lastly, this paper is designed to appeal to those in many disciplines, including bioethics, and provide a primer on the relevant legal concepts for those not practicing law. Much of it reads as an explainer addressing many intertwined laws and arguments. Introduction The Emergency Medical Treatment and Labor Act (EMTALA)[1] appears to conflict with restrictive state abortion laws. Generally, federal law preempts state law in matters where they conflict.[2] State abortion laws should be unenforceable when they conflict with EMTALA, i.e., specifically when abortions are needed to stabilize patients. We argue that EMTALA preempts restrictive state abortion laws when the medical intervention required to stabilize the patient is an abortion. In Moyle v. Idaho,[3] addressing the issue of whether EMTALA preempted the restrictive Idaho abortion law, the Supreme Court sent the case back to the lower courts, but the justices addressed many of the relevant issues: whether the laws conflict, preemption and the Supremacy Clause, the Spending Clause, and various interpretations of EMTALA and Idaho’s abortion law.[4] This paper’s purpose is to give a brief overview of the legal issues, identify practical issues and dangers associated with restrictive abortion laws, and contextualize preemption in the current political moment. The topic here is medical emergency – this paper does not address abortion for either nonmedical or nonemergency reasons. Lastly, this paper is designed to appeal to those in many disciplines, including bioethics, and provide a primer on the relevant legal concepts for those not practicing law. Much of it reads as an explainer addressing many intertwined laws and arguments. What Does EMTALA Require? EMTALA requires emergency departments to screen patients to determine whether they are experiencing a medical emergency. EMTALA defines medical emergency as follows, “a person is having a medical emergency if they are in labor or suffering from a condition that, without immediate attention, could be reasonably expected to place their health in serious jeopardy, seriously impair their bodily function, or cause serious dysfunction to an organ.”[5] Once screened, if an emergency medical condition is present, the hospital must stabilize, or if stabilization is not possible in the facility, transfer the patient. EMTALA caselaw covers what level and type of screening and stabilization meets the rigor of the law. When a hospital cannot stabilize the person, a timely transfer is imperative. EMTALA requires hospitals to stabilize patients when “the absence of immediate medical attention could be reasonably expected to either result in a serious health risk, or seriously threaten bodily functions or organs.”[6] Stabilize is defined as providing treatment necessary “to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or . . .to deliver (including the placenta).”[7] Medical literature demonstrates that abortion may be necessary for life-threatening complications of pregnancy, including sepsis. Therefore, EMTALA requires hospitals to provide abortions if the physician determines that terminating the pregnancy is required to stabilize the patient.[8] Many scholars, lawyers, and healthcare providers take the position that abortion can be medically necessary and that EMTALA should ensure abortions to stabilize, providing a robust body of ethics, legal, and medical literature.[9] Has Violating EMTALA Harmed Women? Since restrictive state abortion laws became enforceable after Dobbs v. Jackson Women’s Health,[10] twelve states enacted (or began to enforce) severely restrictive abortion laws.[11] State policies vary concerning exceptions for saving the life of the mother and for pregnancies resulting from rape and incest.[12] Beyond the twelve states that nearly ban abortion, 15 states have restrictive laws prohibiting abortion after various gestational stages.[13] In Georgia, at least two women have died due to the restrictive law. One attempted a medical abortion at home and did not go to the hospital out of fear they would not treat her. The other “languished” in the hospital while doctors refused to perform dilation and curettage despite sepsis.[14] In Florida, women were denied abortion care and received risky substandard care. One was sent home with antibiotics after preterm premature rupture of membranes, i.e., after her “water broke” before she was full term.[15] She almost died, losing significant blood when the miscarriage occurred in her own bathroom.[16] Restrictive abortion laws have led to sub-standard care including inappropriate discharges resulting in severe outcomes including sepsis.[17] Infections grow quickly and the need for an abortion can become dire as sepsis is described as “a race against time.”[18] There are many personal stories – yet it has been difficult to aggregate the numbers. ProPublica has tried to track how many women have died or suffered serious medical harm due to a lack of timely abortions during medical emergencies.[19] Yet states have not been properly tracking deaths and other physical harms due to delays in emergency abortion care. Additionally, many women have driven themselves or been transferred and airlifted to neighboring states without restrictive laws.[20] In Moyle v. United States, Justice Kagan noted that, “To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).”[21] However, when time is of the essence, stabilization must be local.[22] Delays in providing care can cause hemorrhage, loss of the uterus, infertility, or death.[23] A 2022 study on the impact of Texas’s six-week abortion ban in two hospitals found significantly worse outcomes arose when all patients in preterm labor with at least one clinical indication for induction of labor were treated with state-required “expectant management” rather than induction. Expectant care or expectant management means waiting for the miscarriage to finish on its own and may involve bed rest, examination by ultrasound, and antibiotics. [24] Fifty-seven percent of those with ruptured membranes experienced “a serious maternal morbidity,” such as infection or hemorrhage.[25] EMTALA requires abortion when its delay could damage the uterus and fallopian tubes.[26] Additional emergencies that may require emergency treatment include premature rupture of membranes, ectopic pregnancy, incomplete miscarriage,[27] sepsis, molar pregnancy, and pre-eclampsia. States have ethical obligations to protect citizens experiencing emergencies and should avoid imposing barriers that prevent others from assisting. A floor based on constitutional or federal law had offered protection prior to Dobbs v. Jackson Women’s Health Organization.[28] Ethical obligations of doctors in emergencies may conflict with restrictive state laws arising after Dobbs.[29] Obligations of government to the people are thwarted by restrictive laws at the state level and by a failure of EMTALA enforcement or hard law[30] to clarify or codify a specific right to emergency abortions. What is Preemption? Preemption is the idea that a law of a higher authority will govern rather than a law of the lesser authority. It generally applies when laws conflict. The Constitution includes the Supremacy Clause, which states that the Constitution, federal laws, and treaties are the “supreme Law of the Land.”[31] The breadth of preemption law covers the ways in which the federal government, including administrative agencies, can set floors and ceilings for state laws, can take over certain subject matters (like the FDA governs approval of prescription drugs), and must prevail over conflicting state and local laws, including state constitutions. However, preemption is not absolute; it requires that the federal law is within Congress’ authority,[32] and cannot unconstitutionally infringe on states’ rights. The “presumption against preemption” holds that courts should not assume federal laws governing areas normally left to states, i.e., state police powers, do preempt.[33] Preemption cases look at the validity of the federal law rather than focusing on the state law exclusively. What is the Basis for EMTALA's Preemption of State Law? EMTALA contains a preemption clause which states, “The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”[34] Therefore, the law is not ambiguous; preemption is explicit rather than implied. EMTALA preempts state law when it conflicts with it. EMTALA should govern as per the Supremacy Clause and the breadth and depth of Supreme Court cases on preemption. It seems to be a clear express preemption and yet somehow the Fifth Circuit concluded the opposite, prioritizing state law over federal, and issued an injunction against enforcement of EMTALA when such enforcement requires an abortion to stabilize the patient in violation of Texas’ abortion ban.[35] Does the Preemption Clause Apply to Restrictive State Abortion Laws? Impossibility Preemption. State and federal law are most obviously in confl