Texas, Idaho abortion bans test against federal emergency medicine rule

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For almost 40 years, American hospitals have operated under a federal law that says they must treat and stabilize any patient experiencing a medical emergency.

But now, the Emergency Medical Treatment and Labor Act finds itself on a collision course with conservative states that want to ban abortion in nearly all cases.

The Biden administration has sued Idaho, saying that state’s abortion ban violates EMTALA because its exceptions are too narrow to allow doctors to perform abortions if needed to stabilize a patient. Texas, meanwhile, has sued the Biden administration, saying it's using EMTALA as an end-run around state abortion bans to “mandate that every hospital and emergency-room physician perform abortions.”

The U.S. Supreme Court is hearing arguments about the Idaho case April 24. Its ruling is expected to impact the Texas case, as well as the future of both state-level abortion bans and national standards of emergency medicine.

“Nobody was thinking about EMTALA,” when Roe v. Wade was overturned, said Sara Rosenbaum, a professor emerita at the Milken School of Public Health at the George Washington University.

“Except for the handful of us who are really, really steeped in EMTALA, we knew the day would come when the states’ standards would come into direct conflict with EMTALA,” Rosenbaum said. “We knew we’d be in exactly the position we’re in now.”

EMTALA’s Texas roots

Long before Texas was feuding with the federal government over EMTALA, the Lone Star State was actually laying the groundwork for its creation.

Before EMTALA, private hospitals often turned away patients who couldn’t pay. In addition to taking on all low-income and uninsured patients, public hospitals had to deal with the fallout when patients were improperly discharged from private facilities in the midst of medical emergencies.

Dr. Ron Anderson saw all this firsthand as CEO of Parkland Memorial Hospital, the public hospital in Dallas. In a 2014 oral history, Anderson recounted the story of a pregnant woman who told her doctors at a private hospital that her husband had lost his insurance.

“They pushed her legs together, started an IV, and sent her to Parkland,” he said. “She was crowning—the baby was coming any minute. She delivered in the hallway at Parkland.”

Anderson also chaired the state health board, and in 1985, he pushed Texas legislators to pass the nation’s first anti-patient dumping law, requiring private hospitals to treat medical emergencies regardless of a patient’s ability to pay.

Congress followed in Texas’ footsteps, and the next year, EMTALA was born.

“The fact that Texas had done it helped a lot,” Rosenbaum said, who represented community clinics on the border in patient-dumping cases at the time. “It was a Republican Senate, a Democratic House, and Ronald Reagan was president … but the consensus was there.”

EMTALA enshrines in law the emergency medicine ethos to treat “anyone, anything, anytime.” Hospitals with emergency rooms are required to screen anyone who shows up and determine whether they have an emergency medical condition. If so, the hospital must stabilize them before they can be transferred or discharged.

EMTALA defines an emergency medical condition as anything severe enough where not providing immediate medical attention could place the health of the patient — “or with respect to a pregnant woman, the health of the woman or her unborn child” — in serious jeopardy, or cause serious impairment to bodily functions, organs or parts.

A pregnant woman who is having contractions qualifies as having an emergency medical condition if there isn’t enough time to safely transfer her or if transferring her would threaten her or the pregnancy.

Hospitals that fail to properly screen or stabilize patients can be investigated and, in worst case scenarios, lose the ability to accept Medicare or Medicaid, effectively a death sentence for a hospital.

Although the stabilizing requirement applies if either a pregnant patient or their fetus is experiencing an emergency medical condition, Rosenbaum said the courts have not interpreted EMTALA to preclude abortion as a potentially stabilizing treatment. In fact, hospitals have been cited for EMTALA violations in the past for failing to perform medically necessary abortions to stabilize patients.

Texas v. EMTALA

After the U.S. Supreme Court overturned Roe v. Wade in 2022, the Biden administration issued guidance to hospitals, reminding them that if a doctor believes an abortion is necessary to stabilize a patient’s emergency medical condition, “the physician must provide that treatment.”

“When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

Texas sued the Biden administration over this guidance, saying it was an effort to “force hospitals and doctors to commit crimes” and “transform every emergency room in the country into a walk-in abortion clinic.”

The U.S. Department of Health and Human Services said this was a “patent misreading of the Guidance that bears no resemblance to reality.”

Texas’ abortion ban has an exception that allows doctors to perform an abortion to save a patient’s life. So why is the state going to court over a requirement to perform medically necessary abortions?

The distinction is in the details. EMTALA and Texas’ abortion exceptions create a Venn diagram of emergency pregnancy care: EMTALA mandates care when there is a risk that a patient’s health could be in jeopardy. Texas’ law requires a “life-threatening” condition that poses a “risk of death” before a doctor can act.

Texas’ law lays out the circumstances when a doctor is allowed to perform an abortion without facing potentially years in prison. EMTALA mandates when a hospital must offer stabilizing medical care, which could include abortions.

Under EMTALA, the obligation is on the hospital to ensure its patients receive the stabilizing care they are owed under federal law. If a doctor declines to provide an abortion on conscience grounds, the hospital has to find another doctor who can perform the procedure.

“We are all supposed to be protected when we go to a hospital,” Rosenbaum said. “A, they've got to screen us, but B, if we become unstable in the hospital, then they've got to stabilize us before they let us go.”

Almost two years under Texas’ near-total abortion ban has shown the fear and confusion doctors face when deciding whether it’s legally safe to terminate a pregnancy. Dozens of women have come forward with stories of being denied medical care for their pregnancy complications by doctors too scared to act.

Republican leaders, and the state of Texas in court filings, have blamed doctors for this confusion, saying the laws make it clear they can perform life-saving abortions. This lawsuit reflects Texas’ stance on how doctors are expected to handle edge cases where patients are facing emergency situations that have not yet reached the state’s “risk of death” standard.

In August 2022, U.S. District Judge Wesley Hendrix ruled that while “Texas law already overlaps with EMTALA to a significant degree,” HHS’s guidance “goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent on abortion, and preempts state law only when the two directly conflict.”

Hendrix, a Trump-appointee who hears nearly all cases filed in Lubbock, also found that the guidance was unauthorized because the agency did not follow proper rulemaking procedure.

HHS appealed to the 5th U.S. Circuit Court of Appeals. At the November hearing, Department of Justice lawyer McKaye Neumeister said while Texas’ laws may not prohibit performing abortions in certain circumstances, EMTALA was one of the only ways the federal government could “ensure that the hospitals are following their obligations in offering the care that’s required.”

Judge Leslie Southwick at the hearing described HHS’s guidance as an effort to expand abortion access beyond life-saving care to “broader categories of things, mental health or whatever HHS would say an abortion is required for.”

The appeals court upheld Hendrix’s ruling. HHS has asked the Supreme Court to take up the case.

EMTALA v. Idaho

The future of the Texas case will likely be decided after the Supreme Court hears arguments in another EMTALA case later this month. That case focuses on Idaho’s abortion ban, which was temporarily blocked from going into effect after the DOJ sued, saying it conflicted with EMTALA.

U.S. District Judge B. Lynn Winmill, who was appointed by President Bill Clinton, wrote in his ruling that this case was “not about the bygone constitutional right to an abortion,” but whether Idaho’s state law “conflicts with a small but important corner of federal legislation. It does.”

Winmill pointed to the Supremacy Clause of the U.S. Constitution, which “says state law must yield to federal law when it’s impossible to comply with both.”

At first, a three-judge panel from the 9th U.S. Circuit Court of Appeals overturned Winmill’s ruling, but then the full court heard the case and agreed to leave the law on ice due to its conflict with EMTALA.

Idaho appealed to the U.S. Supreme Court, which ruled that the law should go into effect while the case proceeds.

Rosenbaum said a ruling in Idaho’s favor would amount to restricting what stabilizing treatment a hospital can offer a pregnant patient facing an emergency medical condition, effectively “excising” certain care for certain people from the protections of EMTALA.

“Now you've opened the door to excise any disfavored condition,” Rosenbaum said. “What if, ‘We're going to prohibit our hospitals from providing emergency care unless someone’s dying from a drug overdose, because we think that by offering emergency care, we're encouraging people.’ Or hospitals are now barred from treating populations with HIV unless they're dying. There's no endpoint to this.”

Where things stand now

Until the Supreme Court rules, the Idaho abortion ban remains in effect and, as of the 5th Circuit’s ruling in the Texas case, the Biden administration’s guidance saying EMTALA preempts state abortion bans is suspended.

The EMTALA clash is just one of many unresolved questions surrounding state abortion laws that has left doctors, hospital administrators and the patients they serve in a legal limbo.

While pregnant women go to the emergency room more often than the average person, it’s rare that the situation devolves to the point that a doctor has to perform an emergency abortion to stabilize the patient. But in high stakes, fast-moving crisis situations, doctors say it needs to be available as an option.

“You have doctors stuck trying to navigate all of this, trying to uphold their oath to care for the patient in front of them, while also trying not to break the law and potentially lose their medical license or even face jail,” Dr. Michael Belmonte, an OB/GYN and complex family planning specialist, said in a media briefing with the American College of Obstetricians and Gynecologists. “This is not how any of us trained to practice medicine … and this situation is going to lead to terrible outcomes for our patients.”

Rosenbaum worries that this uncertainty will make providers wary about treating pregnant women in general, for fear that it may devolve into an emergency situation they’re not allowed to treat.

“You make pregnant women toxic,” Rosenbaum said. “You’re a hospital in one of these states, and you see a pregnant woman being brought in with an emergency and before you even know what you're dealing with, everybody is in a panic. You can imagine what goes through people's minds in a state like Idaho or Texas.”

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