O Biden The administration has tried, with mixed success, to use a federal law to preserve access to abortion in medical emergencies. The Supreme Court this month could make that job much more difficult.
The administration has told hospitals that they are required to perform abortions when a patient’s life or health is threatened — even in states with bans. But doctors, health advocates and abortion rights groups say the president’s strategy has had limited impact, as many red states threaten doctors with prison for performing such abortions.
Republicans in Idaho have asked the Supreme Court to decide whether state bans or federal law take precedence. But the decision, which could come as early as Thursday, will probably not be the final word.
Doctors and legal experts told POLITICO that fear of state and local lawsuits will prevent many medical providers from listening to the Biden administration — even with the Supreme Court’s blessing. While a favorable ruling may give comfort to some doctors, it will not be enough to change the paradigm that has seen an increasing number of patients transferred out of state for medical emergencies.
“Some of these hospitals would rather be seen as denying care to a patient than providing an abortion that might be potentially illegal,” said Emily Corrigan, an obstetrician and gynecologist based in Boise, Idaho. “Federal inspection is often just a fine. It’s not losing your license. This is not prison time. These are not family lawsuits [of patients].”
A ruling for Idaho Republicans would allow the state to continue banning most emergency abortions and would likely prompt other states with abortion bans to challenge federal patient protections.
Conservatives acknowledge that hospitals have turned away pregnant patients in emergency situations, but argue that the problem lies with overly scrupulous — or politically motivated — doctors rather than state policies. They say a Supreme Court ruling for the Biden administration would create an easily exploitable loophole for doctors who want to perform abortions in non-emergency situations, allowing them to hide behind the threat of losing significant sums of federal funding.
Erin Hawley, senior counsel at the Alliance Defending Freedom, said these financial sanctions are “pretty harsh on both doctors and hospitals.”
“That would mean they wouldn’t be able to participate in Medicaid and Medicare. I don’t know many hospitals – or any – that are willing to give up on this,” she said. “I don’t think doctors, and certainly not hospitals, are going to risk that.”
The Biden administration has promised repercussions for hospitals that turn away pregnant patients or send them out of state during a life- or health-threatening emergency, released materials to train doctors about its obligations under federal law and created a portal for pregnant patients to report violations. The administration also disclosed some of its investigations into hospitals for noncompliance, including one in 2023 focused on a hospital that turned away a patient whose water broke at 18 weeksplacing her at imminent risk of infection and bleeding.
But following stories over the past two years of pregnant patients being airlifted to another state during a miscarriage, asked to wait in a hospital parking lot until their vital signs fail, or suffering permanent damage to their health and ability to get pregnant after being denied an abortion, medical leaders say poor enforcement of the federal law in question by the government, known as the Emergency Medical Treatment and Labor Act, or EMTALA, is partly to blame.
“In our opinion, it should be more aggressive because people are not getting care,” said Molly Meegan, legal director for the American College of Obstetricians and Gynecologists. “The ramifications of an EMTALA violation can be enormous – you could lose reimbursements from Medicaid and Medicare. But I haven’t seen any hospital lose its real funding.”
The White House declined to share how many violations of EMTALA have been reported since the court ruling. Dobbs v. Jackson Women’s Health Organization decision, how many the administration investigated, how many facilities were found to be out of compliance, and what happened to those facilities.
Jen Klein, director of the White House Gender Policy Council, said the administration “will continue to work with doctors and hospitals to help ensure that every patient receives the emergency medical care required by federal law.”
HHS Secretary Xavier Becerra said in a statement that his agency “will continue to uphold federal law and the right to emergency care.”
“HHS is committed to protecting the ability of all Americans to access emergency medical care – and to taking appropriate action when that care is not provided,” Becerra said. “Doctors should determine what care is needed, not politicians.”
An Associated Press investigation earlier this year found that EMTALA complaints more than doubled in the months following the Dobbs decision compared to the months that preceded it. And in some cases, management chose not to intervene.
While facilities that violate EMTALA can be fined or stripped of their Medicare and Medicaid funding, experts say it’s more common for federal agencies to work with hospitals to comply — if they act at all.
However, the state’s aggressive enforcement of abortion bans is more visible. No doctor has faced criminal charges for performing an abortion in a state that bans the procedure, but doctors told POLITICO that the fear of becoming the first “test case” prevents many from providing care they believe is medically necessary.
“All it takes is an attorney general or a politician saying, ‘Oh, I disagree’ and wanting to make a statement,” said Nisha Verma, a researcher at Physicians for Reproductive Health and Obstetrics and Gynecology based in Atlanta.
Verma said she worked with doctors across Georgia to explain the federal law and how it can be applied in a state with strict anti-abortion laws. Still, she said, her hospital received many patients who had been denied emergency abortions at other facilities — including some who were severely bleeding and at high risk of infection.
“The fear of state criminal prosecution is greater,” she said. “[EMTALA] seems like a less present threat.”
In Idaho, these concerns have spurred a mass exodus of doctors, especially obstetricians and gynecologists who don’t feel safe practicing under the state’s ban.
Corrigan said the Supreme Court’s decision when it took up the case to block a lower court ruling that protected doctors’ ability to perform emergency abortions led hospitals to send many more patients across state lines — which she said be emotionally traumatic and clinically risky. She said it could take more than nine hours, including several ambulances and a plane flight, to get patients to a facility that will treat them in a neighboring state.
“In the meantime, his emergency condition is progressing. So you have to sit down and think, ‘Are they going to deliver it on the plane?’ That would be the most horrible thing,” said Corrigan, who leads the state chapter of the American College of Obstetricians and Gynecologists. “Imagine they’re alone and they’re delivering a pre-viable fetus 30,000 feet up and then they start hemorrhaging. There is no blood bank. There is no operating room.
During oral arguments in the EMTALA case in Aprilthe attorney general cited testimony from an Idaho hospital that reported airlifting pregnant patients out of state once every two weeks — a situation she called “untenable.”
Corrigan, Verma and other doctors operating in states with bans said that despite EMTALA’s limitations, a Supreme Court ruling for Idaho would strip them of one of the last remaining protections they have as they work to care for pregnant patients in crisis.
“This just sends a message that states can decide whether or not to provide emergency care,” Verma said. “So while I think EMTALA needs more teeth, it will still be devastating and set us back.”
Conservatives argue that a ruling against Idaho will allow the Biden administration to force doctors to perform abortions in non-emergency situations.
“They would certainly go after hospitals that don’t perform elective abortions in emergency departments,” said Roger Severino, a former Trump administration official and vice president of domestic policy at the Heritage Foundation.
Regardless of the high court’s ruling, medical groups say there will continue to be widespread fear and confusion in states with abortion bans about whether and when they can treat patients in emergencies, noting that stories of Texas patient Kate Cox It is Caitlin Bernard, Indiana obstetrician and gynecologist especially fueled the frightening effect.
Cox was denied an abortion that her doctor said was medically necessary after the state’s Republican attorney general threatened to sue — even though a state judge ruled that Cox qualified for a medical exemption. Meanwhile, Bernard was investigated by the state’s Republican attorney general and threatened with prosecution after giving a girl an abortion while his state’s now-expired six-week ban was in effect.
Doctors and patients in several states have asked legislatures, courts, and medical boards to clarify how sick patients must be to obtain an abortion, but have received little or no guidance.
The Texas Supreme Court ruled Friday against 20 women who suffered pregnancy complications as a result of the state’s near-total abortion ban. The court ruled that the law was sufficiently clear as written and overturned a lower court ruling that allowed the procedure when doctors considered it necessary in their “good faith judgment.”
“You have penalties that go beyond life-changing — up to life in prison, heavy fines, the loss of your medical license — all in the context of not just the ability to be questioned, but proof that it will happen,” Meegan said, adding that the Cox case further eroded trust in EMTALA by providing “a really concrete example that the law does not protect doctors.”
