Some abortion bans put patients and doctors at risk in emergency situations

Read more status line coverage on how states protect or limit access to abortion.

Since the United States Supreme Court overturned Roe v. Wade, emergency health care providers in states that ban abortion have had to make harrowing legal and ethical judgments before treating a pregnant woman whose health or life might be at risk.

“It happens every day,” said Dr. Jen Villavicencio, equity transformation lead at the American College of Obstetricians and Gynecologists. “We find that treatment for ectopic pregnancies is blocked until they rupture and are life-threatening. We see people with broken water and fetal parts stuck in their vaginas sent home until the fetus dies or the patient ends up in intensive care due to infection or bleeding.

Federal courts in Idaho and Texas are wrestling with the thorny question of whether state abortion bans or a federal emergency medicine law should determine if and when doctors can perform abortions in ’emergency.

Last week, they found opposite answers.

A Texas judge has ruled that state abortion laws take precedence over a federal law requiring hospitals and doctors to protect the health and life of all patients who enter an emergency room or labor ward and childbirth.

Days later, an Idaho judge ruled that the same federal law prevails over state abortion bans.

At issue is the Emergency Medical Treatment and Labor Act, known as EMTALA. Passed in 1986, the law aimed to ensure that all people had access to emergency medical services, regardless of their ability to pay.

To qualify for Medicare funding, which virtually all hospitals need to stay in business, emergency and labor and delivery departments are required by law to screen and stabilize patients, and provide any treatment medically necessary to protect the health and life of any person with an emergency medical condition, including active labor.

On July 14, Texas Attorney General Ken Paxton, a Republican, sued the federal government for blocking enforcement of a July 11 letter to all health care providers stating that their legal obligation to provide all available treatment necessary to stabilize patients with emergency medical conditions “prevents any directly conflicting law or state mandate that might otherwise prohibit such treatment.”

On August 2, the US Department of Justice filed a lawsuit against Idaho seeking a judgment that federal law preempts the state’s abortion ban in cases where the procedure is treatment. necessary for an emergency medical condition.

Legal experts say the conflicting court rulings are paving the way for a host of new battles that could send the issue of federal preemption back to the U.S. Supreme Court.

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EMTALA requires emergency physicians to provide any treatment necessary to protect a patient’s health and life. In most states that prohibit abortion, an exception is made for abortions performed to save a patient’s life, but not to protect a patient’s health.

Doctors and hospital administrators say it is difficult, if not impossible, to know when a patient is at risk of dying. More importantly, medical ethics require doctors to provide the best treatment available to prevent patients from getting this far.

The most common pregnancy-related medical emergency is an ectopic pregnancy, in which a fertilized egg develops outside the uterus and will never develop into a viable fetus. Occurring in approximately 2% of all pregnancies, the recommended treatment is to remove the embryo and terminate the pregnancy. If left untreated, an ectopic pregnancy can lead to bleeding, infection, and sometimes death.

Patients also visit hospital emergency rooms and labor and delivery wards when they go into early labor, water breaks or starts bleeding, all signs of a potential miscarriage. Since there is no chance of a fetus surviving outside the uterus during the first trimester of pregnancy, when most miscarriages occur, the recommended treatment is medication or clinical abortion.

“Idaho’s decision showed some understanding of the gray area we often find ourselves in, where we know someone needs treatment, but we don’t know exactly when or if their condition will become life-threatening. “said Dr. Alison Haddock, chairman of the board of the American College of Emergency Physicians.

No emergency doctor wants to become a test case of how long a doctor has to wait before performing an abortion to save a patient’s life, she said.

‘Cooling Effect’

Federal district court rulings last week only affect doctors and patients facing health emergencies in their respective states.

In Texas, the judge ruled that emergency abortions to protect a patient’s health are not excluded from state law, which makes abortion a crime unless it is necessary to save the patient’s life.

In Idaho, the judge exempted emergency abortions to protect a patient’s health or life from the state’s new trigger law banning nearly all abortions.

Both decisions were preliminary injunctions that will remain in effect until a final decision is made by the district court. In both cases, decisions can be appealed to a circuit court. From there, the matter could land in the United States Supreme Court.

In the meantime, legal experts say lawsuits addressing the same issue could arise in the other 24 states that have laws banning abortion before viability, according to the Guttmacher Institute, which supports the right to health. abortion.

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In six of the abortion-banning states — Arkansas, Georgia, Idaho, Missouri, North Dakota and Tennessee — the bans allow prosecutors to criminally prosecute medical professionals for performing abortions. Providers there are only allowed to prove that the procedure was necessary to save the patient’s life after being charged.

In other states, abortion bans include an exception for emergency abortions necessary to protect the patient’s life, which means healthcare providers will not be prosecuted unless there is evidence to show. that the patient’s condition was not life-threatening.

But medical professionals say it’s impossible to know how close a patient must be to death before a necessary abortion is exempt from a state ban. Even if a clear line existed, they say, medical ethics require doctors to treat patients as soon as possible to avoid negative outcomes.

“The overall impact of these laws is a chilling effect on the practice of medicine,” said Villavicencio of the organization of obstetricians. “Regardless of the specific language, abortion bans scare health care providers into believing their profession is in jeopardy, their freedom to provide the best possible care to their patients.

“For some,” she said, “the only choice is to provide no care at all.”

Legal chaos

Legal experts on all sides of the issue are predicting a jumble of lawsuits over federal preemption of state abortion bans under EMTALA before the issue is resolved.

Steven Aden, general counsel for Americans United for Life, which opposes abortion, called the Idaho case brought by the Biden administration a “political stunt.” He agreed with the judge’s conclusion in the Texas case, arguing that the federal government is not allowed to sue a state under its EMTALA law, only to withhold Medicare funding.

Aden argued that the criminal law provides several layers of protection for doctors who perform emergency abortions to save a patient’s life and that state lawmakers never intended their prohibitions to allow prosecutors to sue health care providers unless they show behavior and intent to do so. break the law.

But doctors shouldn’t have to be experts in state abortion bans and criminal law to practice medicine, said Lawrence Gostin, professor of global health law at Georgetown University. .

“It is unconscionable to require physicians to face an agonizing choice between following state law, federal law, or medical ethics. When it comes to the emergency department, doctors shouldn’t have to shy away from providing needed care,” he said.

“Right now, President Biden is focusing his strategy on existing federal law because he can’t get Congress to take action and the future of the Supreme Court is bleak,” Gostin said. “The only federal options available to preserve abortion rights are the primacy of EMTALA and the FDA preemption of medical abortion. We’ve seen split decisions from Idaho and Texas before, and we’ll likely see more.

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