Las Vegas Review-Journal (Sunday)
Anti-abortion agitators are trying to cripple a lifesaving health care law
Here’s how the legal departments of two hospitals, legislators in two states and even the Supreme Court turned a pregnancy emergency for Mylissa Farmer into a life-threatening nightmare.
Farmer, 41, was 18 weeks into her pregnancy when her water broke prematurely. Her doctor instructed her to go to her local hospital in Joplin, Mo.
There, the hospital’s labor and delivery doctors determined that she had no amniotic fluid left. Her baby had “‘zero’ chance of survival” and she risked infection, blood loss and even death. The doctors advised her that they could help her undergo an “inevitable miscarriage,” or she could wait, at risk to her life.
She chose the former, and then the hospital’s legal department stepped in. Although Missouri’s anti-abortion law has exceptions when continuing a pregnancy might cause the mother’s death or “irreversible physical impairment,” the lawyers determined she was not quite there yet.
The doctors advised Farmer to go out of state, to neighboring Kansas, which was then in the thick of a political campaign over a proposed anti-abortion constitutional amendment.
She arrived at the University of Kansas Hospital on Aug. 2, 2022, the very day that the vote was taking place. There the doctors offered either to induce labor or end her pregnancy surgically. Then that hospital’s lawyers stepped in. They forbade the doctors to provide any treatment at all, having ruled, according to a doctor, that it “was too risky in this political environment.” Three days later, she reached a clinic in Illinois that performed the necessary treatment.
Mylissa Farmer’s experience matches those of countless other women whose health care has been compromised by anti-abortion state laws since 2022, when the Supreme Court in its so-called Dobbs decision overturned the guarantee of abortion rights established by Roe v. Wade in 1973.
But there’s more to her case. The refusal by two major hospitals to treat her emergency condition violated federal law — the Emergency Medical Treatment and Labor Act of 1986, known as EMTALA.
The law, which was drafted to stop hospitals from “dumping” emergency patients without insurance by denying them treatment, requires all hospitals receiving Medicare or Medicaid funds — pretty much all hospitals — to provide all emergency room patients with the treatment required to “stabilize” their conditions before transferring them or sending them home.
Investigations by Medicare inspectors last year concluded that the Joplin hospital and the University of Kansas Hospital violated EMTALA when they released Farmer without providing the requisite treatment. The penalties run up to $50,000 per incident and the termination of the hospitals’ Medicare and Medicaid contracts, but no actions have been announced.
There’s no exception in EMTALA when the required emergency treatment is an abortion. And that has made EMTALA the newest target of anti-abortion agitators and politicians. They claim that the federal law promotes or even mandates abortions in all cases, which is false.
The claim, however, has caught the eye of the Supreme Court, which has scheduled oral arguments April 24 on a case involving Idaho’s anti-abortion law and its manifest conflict with EMTALA.
The court’s decision to take up the case alarmed abortion rights advocates when it was announced Jan. 5. It looms even larger now: The court has signaled, though not guaranteed, that it will reject a right-wing challenge to the Food and Drug Administration’s approval of mifepristone, the key drug in medication abortions, but the Idaho case could give its conservative majority another crack at strengthening state anti-abortion policies nationwide.
“There was a lot of press around the mifepristone lawsuit,” says Michelle Banker of the National Women’s Law Center, which is providing Farmer with legal representation. “This is a bit of a sleeper case.”
The case is rooted in an advisory issued by Medicare authorities two weeks after the Dobbs decision overturned Roe v. Wade. It emphasized to doctors and hospitals that when a pregnant woman arrived at an emergency room with a condition that required an emergency abortion, “the physician must provide that treatment.”
When a state law prohibited abortion and didn’t include an exemption when the life of the mother was threatened, the advisory said, “that state law is preempted” by the federal law.
Anti-abortion advocates instantly took up arms against the advisory. They scurried to federal court in Lubbock, Texas, which has a single active judge, Trump appointee James Wesley Hendrix, who obligingly blocked it with a permanent injunction. The government’s appeal went to the notoriously right-wing U.S. 5th Circuit Court of Appeals, which upheld the injunction.
The Texas case hasn’t made it yet to the Supreme Court. It was outrun by the Idaho case, in which the federal government moved to block Idaho’s anti-abortion law to the extent it conflicted with EMTALA.
The conflict, as the government points out, is that the law requires doctors to perform an emergency abortion if necessary to prevent a patient’s condition from deteriorating or to protect them from potentially severe or permanent injury. Idaho law forbids an abortion only if it’s necessary to avert a patient’s death. Doctors caught in this vise are in effect being told that they must allow a pregnant woman’s condition to deteriorate until she is near death before they can act.
It wasn’t entirely unsurprising that Idaho would become the battleground for the issue. The state is doing very well in the race to enact the most goonishly malevolent anti-abortion policies. Its abortion law criminalizes abortion at all stages of pregnancy, with narrow exceptions for cases in which continuing a pregnancy would threaten the mother’s life.
Idaho law also makes it a felony to help a minor leave the state for an abortion. (A federal judge has temporarily blocked the so-called “abortion trafficking” law while a lawsuit challenging its constitutionality proceeds.)
The state has claimed that its abortion law makes it a felony for a health care provider to refer a patient for an abortion out of state. (Also blocked, for now, by a federal judge.) Another state law exposes professors at Idaho public universities with jail terms of up to 14 years for teaching, discussing or writing about abortion.
Put all that together, and a ruling that it can flout federal law to protect its anti-abortion credentials would be right up Idaho’s alley.
In making its case, Idaho asserts that after the Dobbs decision, the Biden administration “reinterpreted” EMTALA “to create a nationwide abortion mandate,” and that it “discovered” the mandate nearly 40 years after EMTALA’S enactment.
As the government points out, however, the mandate was always within EMTALA; it never had to be spelled out before because Roe v. Wade had been the law of the land for 13 years before EMTALA was enacted. Until Dobbs, the role of abortion as an emergency treatment almost never came under question.
Anti-abortionists maintain that Dobbs “caused a sea change in the law,” as 5th Circuit appellate judge Kurt Englehardt, another Trump appointee, wrote for the three-judge appeals panel upholding the Texas injunction.
That was a cute bit of legerdemain. EMTALA didn’t change as a result of Dobbs — health care laws in red states changed to outlaw abortion. “It has always been the case that EMTALA has been understood to require abortion care when that’s necessary to stabilize a patient’s medical condition,” Banker told me. “The only thing that’s new is that Roe v. Wade has been overturned.”
Indeed, according to a friend-of-the-court brief filed by six former Medicare administrators and former Health and Human Services Secretary Donna Shalala, who served under both Presidents Bush as well as Presidents Clinton and Obama, Medicare repeatedly issued public guidance stressing that abortion should be considered appropriate emergency treatment when warranted, even before Dobbs.
Idaho, like its apologists in the right-wing fever swamp, maintains that EMTALA “merely prohibits emergency rooms from turning away indigent patients with serious medical conditions” and doesn’t mandate “any specific type of medical treatment, let alone abortion.”
Idaho’s interpretation suggests that hospitals could simply keep indigent patients in their corridors, untreated, until they wasted away, without violating EMTALA. That’s not what the law says. It explicitly mandates that hospitals “provide either ... such treatment as may be required to stabilize the medical condition” or transfer the patient to another facility that can provide the treatment — as long as the transfer itself won’t harm the patient.
What does “stabilize” mean? The law defines the term as meaning that “no material deterioration of the condition” would result from discharging or transferring the patient. It also defines an “emergency medical condition” as one that, without treatment, would jeopardize “the health of the individual,” or cause “serious impairment to bodily functions” or to any organ or body part.
Far from ignoring pregnancy issues, EMTALA has always explicitly covered women presenting with a pregnancy emergency. In those cases, the law says, the hospitals are bound to provide treatment that protects “the health of the woman or her unborn child.”
“Obstetricians in Idaho live in constant fear,” states a friend-ofthe-court brief filed by a coalition representing 678 Idaho doctors and other medical professionals. “Always at the back of their minds is the worry that a pregnant patient will arrive at their hospital needing emergency care that they will not be able to provide.”
Under Idaho law, doctors face prison terms of up to five years and the loss of their medical licenses for following medical protocols unless “the patient is face-to-face with death.”
Doctors confronted with an emergency pregnancy, the brief says, have the choice of complying with EMTALA and thus risking a stiff prison term and the end of their careers, or complying with state law and thus risking their patient’s health or even causing their death.
What’s worse, “the culture of fear surrounding Idaho’s abortion laws has only exacerbated the struggle,” the brief says. “Idaho’s doctors have been warned that they are being tracked and scrutinized and they should fear prosecution for providing an abortion under any circumstances — even when medically necessary.”
Is there any mystery why OB/ GYNS are leaving Idaho by the score? Half of the state’s 44 counties have no practicing obstetricians at all.
A solution, albeit a modest one, to the confusion over the responsibilities of obstetricians in anti-abortion states would be for the Supreme Court to clarify that federal law prevails when it runs up against a more restrictive state law. Making that clear in Idaho would send a signal to Texas, Missouri and other states that a mother’s life and health can’t be legislated away.
The EMTALA case gives the Supreme Court an opportunity to uphold science and morality on women’s reproductive health care, as it appears to be preparing to do on mifepristone. But what if it follows that case by allowing states to sentence pregnant women to substandard emergency care?