Between EMTALA and State Abortion Restrictions: The Post-Dobbs Dilemma

• January 01, 2023

• Alicia Macklin , Hooper Lundy & Bookman PC
• Julia Michael , Kaiser Foundation Hospitals and Health Plan
• Kerry Sakimoto , Hooper Lundy & Bookman PC

Imagine the following scenario—a pregnant individual presents at a hospital emergency department with a uterine infection, which is determined to be an emergency medical condition requiring stabilizing treatment that could result in the termination of the pregnancy pre-viability. The hospital is located in a state where state law prohibits an abortion in this instance, only allowing an abortion where necessary to prevent the imminent death of the pregnant person. What are the obligations of the treating physician? Of the hospital? What are the risks of providing the treatment per the Emergency Medical Treatment and Labor Act (EMTALA) or withholding the treatment per state law?

The post-Dobbs v. Jackson Women’s Health Organization¹ legal landscape is evolving, causing confusion for patients and providers alike. Hospitals and physicians face a unique challenge in complying with both EMTALA and state abortion restrictions. Focus on this area is likely to continue to grow given both litigation surrounding EMTALA-mandated emergency care and the U.S. Department of Health and Human Services’ (HHS’s) position that EMTALA is an important regulatory scheme to ensure access to reproductive health following Dobbs.² Recently, the Centers for Medicare & Medicaid Services (CMS) authorized the Missouri Department of Health and Senior Services to launch the first confirmed investigation of an alleged denial of abortion care to a patient experiencing a medical emergency by a Missouri hospital, as discussed further below.

This article provides an overview of EMTALA’s obligations as well as the specific agency guidance addressing EMTALA-mandated stabilizing treatment that may result in termination of a pregnancy. Before turning to practical compliance advice, the article also discusses the varying regulatory and judicial interpretations of the interaction between EMTALA and state abortion restrictions, as evidenced by the situations in Idaho and Texas described below (which may be out of the date by the time of publication).

EMTALA and State Law Obligations

EMTALA. Congress enacted EMTALA in 1986 (13 years after Roe v. Wade)³ in response to growing concern that indigent emergency patients were being turned away from hospitals or transferred in an unstabilized condition.⁴ The final legislation, however, protects all patients regardless of financial status or coverage. And, in general, both HHS and the courts have described EMTALA as broadly enhancing access to emergency services and prohibiting discrimination in the provision of emergency services to persons presenting with the same or similar types of conditions.

EMTALA Requirements. EMTALA imposes three key requirements—screening, stabilization, and transfer—on Medicare-participating hospitals with emergency departments (EDs). An in-depth description or analysis of these requirements is beyond the scope of this article, but these requirements can be summarized as follows:

1. Screening Requirement—A hospital must provide an appropriate medical screening examination (MSE) to an individual who has come to the ED, including most labor and delivery departments, seeking or in need of evaluation/treatment or, in certain circumstances has come to other parts of the hospital campus. The MSE determines whether the individual has an emergency medical condition (EMC) (discussed further below).⁵
2. Stabilization Requirement—If a hospital determines an individual has an EMC, the hospital must provide stabilizing treatment within its capability and capacity.⁶
3. Transfer Requirement—If a hospital cannot stabilize the EMC, the hospital must arrange for an appropriate transfer of the individual to another facility for stabilizing treatment.⁷

EMCs. An EMC is defined as—

“(A) [A] medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child⁸) in serious jeopardy;

(ii) serious impairment to bodily functions; or

(iii) serious dysfunction of any bodily organ; or

(B) [W]ith respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery; or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.”⁹

In the case of a pregnant individual, the definition of an EMC expressly includes recognition that a condition could qualify as an EMC by virtue of its potential impact on either the pregnant person or the unborn child (or both). However, the statute does not define “unborn child.”¹⁰ As noted below, the courts have not yet grappled with the definition of “unborn child.”

State Abortion Laws. Following Dobbs, more than a dozen states have implemented, enacted, or begun to enforce bans on abortions, with limited, if any, exceptions.

Enforcement. Importantly, the stakes are high. A violation of EMTALA could result in termination of a hospital’s Medicare participation;¹¹ exclusion from Medicare, Medicaid, and other programs; monetary fines up to $119,942 per violation for physicians or hospitals with over 100 beds;¹² and civil liability for hospitals. Violations of state abortion laws by providers could result in: criminal prosecution and possible conviction (e.g., up to a life sentence in Texas),¹³ severe monetary fines,¹⁴ civil liability, and state licensing action.

Preemption. EMTALA expressly addresses preemption, providing that “[t]he provisions of this section do not preempt State or local law . . . except to the extent that the [State or local law] requirement directly conflicts with a requirement of this section.”¹⁵

HHS Guidance Post-Dobbs

Following the Dobbs decision, on July 11, 2022, HHS issued guidance¹⁶ to “remind hospitals of their existing obligation to comply with EMTALA,” including when abortion is the stabilizing treatment necessary to stabilize an individual’s EMC, as well as a letter¹⁷ addressed directly to health care providers confirming HHS’s position that physicians must provide such stabilizing treatment irrespective of state law (together, the HHS Guidance).

The HHS Guidance points to EMTALA’s preemption language, noting that “[a] physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents under EMTALA to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment.” In particular, HHS indicates that there is such a conflict when a state law prohibits abortion and does not include an exception for the life of the pregnant person or when a state law draws an exception more narrowly than EMTALA’s definition of EMC. The agency goes on to provide a nonexhaustive list of potential EMCs involving pregnant patients such as ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.

The guidance also notes that preemption could potentially be a defense to a “state enforcement action, in a federal suit seeking to enjoin threatened enforcement, or, when a physician has been disciplined for refusing to transfer an individual who had not received the stabilizing care the physician determined was appropriate, under the statute’s retaliation provision.”

Litigation Post-Dobbs

Despite HHS’s efforts to clarify a provider’s obligations under EMTALA after Dobbs, recent court decisions involving Texas and Idaho have led to further uncertainty regarding the interplay between EMTALA obligations and state abortion laws. Although these cases are differently situated, they likely preview a long-term legal battle between the federal government and states seeking to restrict abortions in the context of emergency care mandated by EMTALA.

Texas v. Becerra

Texas brought suit challenging the HHS Guidance as an “attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.”¹⁸ Relying on a number of statutory and constitutional grounds, Texas alleged both substantive and procedural defects with the HHS Guidance. Two provider groups also joined the action—the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), and the Christian Medical and Dental Association (CMDA).

On August 23, 2022, the federal court ruled that the plaintiffs had demonstrated a substantial likelihood of success on the merits and preliminarily enjoined HHS from enforcing its interpretation of EMTALA in Texas.¹⁹ In particular, the court concluded that the HHS Guidance (1) exceeds HHS’s statutory authority and the permissible construction of EMTALA, and (2) was issued without notice-and-comment rulemaking. After finding that Congress had not spoken to EMTALA’s requirements as they pertain to abortion,²⁰ the court read EMTALA as imposing “equal” obligations with respect to both the pregnant person and their unborn child, based on EMTALA’s references to “unborn child” in the definition of an EMC.²¹ These obligations, according to the court, create a potential conflict in physician duties that the statute does not resolve.

Because EMTALA does not address how a physician should resolve their independent obligations to both the pregnant person and their unborn child, the court concluded that Texas’s abortion law may fill that void and there is no “direct conflict” between the state law and EMTALA.²² According to the court, nothing in Texas’s abortion law makes the provision of stabilizing care impossible. Rather, the court contends, the HHS Guidance impermissibly eliminates the duty under EMTALA to stabilize the health of the unborn child.

Impact of Ruling. Currently, HHS is prohibited from enforcing its interpretation “as to when an abortion is required and EMTALA’s effect on state laws governing abortion” within the state of Texas or against AAPLOG’s and CMDA’s members.²³ Given the court’s interpretation of the HHS Guidance, hospitals and physicians may determine that stabilizing treatment under EMTALA can only be provided where the patient’s condition is life-threatening or poses a serious risk of substantial impairment of a major bodily function in conformity with Texas’s medical emergency exception for abortions.

United States v. Idaho

While the Texas litigation was pending, the United States filed suit challenging Idaho’s “trigger” law banning abortion without key exceptions.²⁴ And, the day after the Texas ruling, the court issued a preliminary injunction, prohibiting Idaho from enforcing its abortion law as applied to emergency medical care required by EMTALA.²⁵ In particular, the court held that the federal government demonstrated a substantial likelihood of succeeding on the merits of its Supremacy Clause challenge—that EMTALA preempts Idaho’s state abortion ban with respect to EMTALA-mandated care.

The federal court concluded that EMTALA requires abortion care in instances where Idaho law would prohibit such treatment. The language of Idaho’s abortion law broadly prohibits abortion in all cases, while providing only a narrow affirmative defense where the abortion was necessary to “prevent the death of the pregnant woman.”²⁶ In contrast, EMTALA “obligates the treating physician to provide stabilizing treatment, including abortion care.”²⁷ The court further highlighted that EMTALA mandates such stabilizing treatment where the individual could “reasonably be expected” to suffer injury, whereas Idaho’s abortion law limits abortion care (in the context of an affirmative defense) to instances where “necessary,” such that death must be imminent or certain absent an abortion. Accordingly, the court concluded, “where federal law requires the provision of care and state law criminalizes that very care, it is impossible to comply with both laws. Full stop.”²⁸

The court also concluded Idaho’s abortion ban stood as an obstacle to Congress’ purpose and objectives in enacting EMTALA.²⁹ For example, the court viewed Idaho’s abortion law as potentially causing providers to delay stabilizing care, noting that the law is not clear as to how imminent a patient’s death must be before an abortion is “necessary,” and thus triggering the affirmative defense, a judgement that the court notes is far from the realities of medical decision making. Even where a physician may be able to raise the affirmative defense, they would first need to face indictment, arrest, pretrial detention, trial, and then attempt to convince a jury that they made a good faith determination that the patient would have died if the abortion had not been performed.³⁰ The court concluded that this could lead to further delays in care and frustrates EMTALA’s purpose, recognizing that some providers may “delay[] care so that the patient gets nearer to death and thus closer to the blurry line of the affirmative defense,” or to “allow extra time to consult with legal experts.”³¹

Impact of Ruling. Currently, Idaho is enjoined from enforcing Idaho Code § 18-622 to the extent that the statute conflicts with EMTALA-mandated care.³²

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A motion for reconsideration is pending in the Idaho case.³³ In addition, HHS has appealed the Texas federal court’s ruling on the preliminary injunction.³⁴ Despite the different legal questions presented, it is likely that there will be continuing litigation over the extent to which EMTALA preempts certain state laws and obligates providers to provide stabilizing treatment for conditions that threaten the health of pregnant patients.³⁵ In the meantime, providers are left to make sense of their obligations under EMTALA and state law.

The decisions in the Idaho and Texas cases may also set the foundation for future legal battles in abortion-restrictive states. In late October 2022, there are reports that CMS authorized the Missouri Department of Health and Senior Services (DHSS) to conduct an EMTALA investigation after a hospital allegedly refused to provide an abortion procedure for a patient who was reportedly experiencing a preterm premature rupture of membranes, which reportedly could place the patient at risk of infection and rendered the fetus nonviable.³⁶ The hospital refused to perform the procedure after allegedly determining the patient’s case did not qualify under an exception to Missouri’s law permitting abortions in cases of medical emergency.³⁷ Although DHSS’ investigation here is limited to determining compliance with EMTALA, and not state law, the hospital may attempt to use Missouri’s abortion laws as a defense, which would likely lead to a future court battle over EMTALA’s preemption of Missouri abortion laws.

How to Comply with EMTALA and State Abortion Laws?

Hospitals and physicians in states that restrict abortion are being tasked to navigate what law applies and how to balance their EMTALA obligations and state law. As noted above, the stakes are high when it comes to compliance with these laws and obligations.

Hospitals and physicians balancing these obligations should consider: (1) whether EMTALA applies; (2) whether stabilizing treatment could result in termination of the pregnancy; and, (3) whether such stabilizing treatment conflicts with state law.

Does EMTALA Apply? The first step in determining whether stabilizing treatment must be provided pursuant to EMTALA is to determine whether EMTALA even applies. As explained above, EMTALA generally applies to individuals who come to the ED or are otherwise on the hospital’s campus seeking care. Thus, for example, EMTALA would not apply to a pregnant hospital inpatient that develops abdominal pain and severe bleeding³⁸ or to a pregnant patient that develops abdominal pain and severe bleeding in a physician’s office that is not a part of the hospital.³⁹ In contrast, if a pregnant individual comes to the ED complaining of abdominal pain and severe bleeding or collapses on the hospital campus, EMTALA would apply.

Does EMTALA Require Stabilizing Treatment That Could Result in Termination of the Pregnancy? As noted above, if EMTALA is triggered, the hospital must provide an MSE to determine whether an EMC exists. Whether a patient has an EMC and how to stabilize the EMC is (arguably) up to the professional judgment of the treating physician.⁴⁰ Pregnancy in the absence of contractions alone (see definition of EMC, above) is not necessarily an EMC, meaning that merely showing up to a hospital pregnant does not trigger an EMTALA requirement to provide stabilizing treatment. However, if after an appropriate MSE, an EMC is identified, the next question is what stabilizing treatment is required?⁴¹ In certain situations, treatment that may result in termination of a pregnancy may be determined to be the stabilizing care necessary to treat the patient’s EMC. For example, for placental abruption, previable preterm premature rupture of membranes (previable PPROM), and HELLP syndrome or severe pre-eclampsia, where such conditions occur early on in pregnancy and prior to viability, the standard of care is often uterine evacuation.

Does EMTALA’s Requirement to Provide Stabilizing Treatment Conflict with State Law? If stabilizing treatment might result in termination of the pregnancy, the question post-Dobbs is whether a state’s abortion law is in direct conflict with EMTALA’s stabilization requirement. Some states with abortion restrictions expressly exclude certain procedures like removal of a dead fetus or ectopic pregnancy from the definition of abortion (e.g., Georgia and Texas),⁴² but others do not (e.g., South Dakota).⁴³ Abortion laws often include “medical emergency” exceptions (e.g., Georgia and Texas)⁴⁴ or affirmative defenses (e.g., Idaho),⁴⁵ which may allow or excuse abortions where necessary to save the life of the pregnant person. But the “medical emergency” exceptions and defenses vary across states and do not necessarily align with EMTALA’s requirements nor do they encompass the reality of the situation faced by many pregnant individuals, hospitals, and ED providers.

As flagged in the hypothetical in the introduction—what happens if a patient presents at a hospital ED with a uterine infection, which is determined to be an EMC requiring stabilizing treatment that may result in termination of the pregnancy pre-viability? In some states with abortion restrictions, such treatment required by EMTALA would likely be prohibited under state law.

According to HHS, where there is a direct conflict between EMTALA and a state law, treatment necessary to stabilize the patient in compliance with EMTALA must be provided, and state law is preempted. Therefore, in a state with an abortion ban that does not include an exception for the health of the pregnant individual, HHS would take the position, except in Texas where it is enjoined from doing so,⁴⁶ that the appropriate stabilizing treatment is required and cannot be delayed even if state law prohibits such treatment.⁴⁷ As EMTALA compliance is primarily assessed based on available documentation, it is always important that the treating physician’s documentation supports the applicability of and compliance with EMTALA, including the MSE, and the necessity and appropriateness of the stabilizing treatment to treat the EMC.

In such situations where there is a direct conflict, HHS has been clear that state law is preempted, and hospitals and providers must comply with EMTALA and provide stabilizing treatment, even if such treatment could result in termination of the patient’s pregnancy. While preemption may be a defense, providers may still be at risk of state criminal or civil prosecution or licensing actions. Thus, notwithstanding preemption arguments, the mere threat of criminal prosecution may result in delayed or foregone care, which in turn may create its own legal risks, and ultimately can put the lives of patients at risk.⁴⁸

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EMTALA is fact-specific, case-by-case analysis, and state laws vary, so it is important that hospitals and physicians consult with legal counsel. This article is not intended to provide legal advice. This article focuses on the current legal landscape and practical compliance recommendations, but it may be out of date by the time of publication given the pending litigation and potential for evolving regulatory guidance.

Alicia Macklin is a Partner at Hooper Lundy & Bookman PC where she advises hospitals and health systems on a broad range of compliance, reimbursement, and operational issues. She focuses on EMTALA, and her work in this space involves reviewing and revising EMTALA policies, providing in-service education for physicians and staff, managing investigations and surveys, and advising on EMTALA’s intersection with state laws. She is also a member of the firm’s Reproductive Health Practice Group. Alicia holds a JD from the USC Gould School of Law and an MPH from the UCLA Fielding School of Public Health.

Julia Michael is Senior Counsel for Kaiser Foundation Hospitals and Health Plan. Julia is a passionate advocate for her clients, counseling Kaiser’s hospitals and health plan on a myriad of legal, regulatory and compliance matters, including hospital licensing and accreditation, regulatory reporting, EMTALA, medical staff and credentialing. Julia has supported and advised Kaiser nationally, as the integrated organization addresses the delivery of reproductive health care post-Dobbs. Julia holds a JD from Fordham University School of Law.

Kerry Sakimoto is an Associate at Hooper Lundy & Bookman, PC. Kerry’s practice focuses on transactional and health care regulatory matters, including digital health and health technologies, privacy, and the corporate practice of medicine. He is a member of the firm’s Reproductive Health Practice Group and its Digital Health Practice Group. Kerry holds a JD from the UCLA School of Law.

AHLA would like to thank the leaders of the Academic Medical Centers and Teaching Hospitals Practice Group for contributing this feature article: Amy Bolian (Chair); Rebecca Matthews, Wiggin and Dana LLP (Vice Chair—Education); Allison Smith Newsome, Taft Stettinius & Hollister LLP (Vice Chair—Education); David Vernon, Hooper Lundy & Bookman PC (Vice Chair—Education); and Michelle Brennfleck, Buchanan Ingersoll & Rooney PC (Vice Chair—Member Engagement).

ARTICLE TAGS

• Academic Medical Centers and Teaching Hospitals Practice Group
• Reproductive Health Law Hub
• Patient Care Liability and Litigation