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Congressman Joe Pitts used a misleading and inaccurate interpretation of medical law to push for the passage of H.R. 358, the Let Women Die Act of 2011. Chillingly, the bill that was passed would ensure that hospitals’ institutional   dictates, including those at odds with medical science, could override   the consciences of the doctors who work for them, even when those   dictates unreasonably risk women’s lives.

Written by Laura MacCleery for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Last week’s vote on H.R. 538, the Let Women Die Act of 2011, was a deeply  disappointing new low for the House of Representatives, even if  the  outcome was unsurprising given the chamber’s recent record of extremist,  anti-woman bills.  The heated debate occasioned dueling Dear Colleague  letters by Rep.’s Jan Schakowsky (D-IL) and the author of the bill,  Rep. Joseph Pitts (R-PA), that made competing claims about the  critical issue of whether the bill newly imperils the lives of women by  allowing institutions and doctors to refuse to provide care even in  life-threatening emergencies.

The dispute concerns the present scope of patient  protections offered by an anti-patient-dumping law, the Emergency  Medical Treatment and Active Labor Act, or EMTALA. Schakowsky’s letter  highlighted the issue by noting that the “bill would, in effect, strip  EMTALA of its power to ensure that women in emergency situations  receive abortion care at hospitals by making their right to health care  secondary to the hospital’s ability to refuse to provide abortion care.”  Pitts, on the other hand, claimed in his Dear Colleague that because  EMTALA already includes a reference to the “unborn child,” then “EMTALA  currently recognizes both lives.”

Who’s right? A basic review of the law says that Schakowsky  is, by a mile.  EMTALA uses the words “unborn child” in three places;  all three make clear that the protection is intended to assure that a  hospital seeking to transfer a woman in “active labor” (as in the title  of the Act) must assess any health risks associated with the transfer  for both the woman in labor and the child she is about to deliver.  The  law does not, as Pitts claims, confer a freestanding interest in the  health of an “unborn child” that would allow hospitals to deny care to a  woman experiencing a miscarriage.  If it did so, this aspect of the  Pitts bill would be superfluous.

In fact, in this American Journal of Public Health article by Lori Freedman,  a religiously-affiliated hospital that actively refused to complete a  miscarriage and risked a woman’s health in doing so, was reported for an  EMTALA violation when it sought to transfer the patient.

She notes:

"Dr B, an obstetrician-gynecologist working in an academic medical  center, described how a Catholic-owned hospital in her western urban  area asked her to accept a patient who was already septic [suffering  from infection].

When she received the request, she recommended that the  physician from the Catholic-owned hospital perform a uterine aspiration  there and not further risk the health of the woman by delaying her care  with the transport.

[From the doctor:] “Because the fetus was still  alive, they wouldn’t intervene. And she was hemorrhaging, and they  called me and wanted to transport her, and I said, ‘‘It sounds like  she’s unstable, and it sounds like you need to take care of her there.’’

And I was on a recorded line, I reported them as an EMTALA violation.  And the physician  [said], ‘‘This isn’t something that we can take care  of.’’ And I [said], ‘‘Well, if I don’t accept her, what are you going to  do with her?’’

[He answered], ‘‘We’ll put her on a floor [i.e., admit  her to a bed in the hospital instead of keeping her in the emergency  room]; we’ll transfuse her as much as we can, and we’ll just wait till  the fetus dies.’’

This risky delay in care is caused by hospitals’ adherence to the  Religious Directives put forward by the Catholic bishops – including in  cases in which the Directives clearly conflict with commonly accepted  medical standards.  The Directives specify that hospitals must wait  until the fetal heart tone ceases before acting to complete a  miscarriage, even if the pregnancy is clearly no longer viable.  Yet in  the meantime, as in the case described by this doctor, women are at risk  of becoming septic, a serious and life-threatening form of infection,  and death.

One loophole that is rarely mentioned but is highlighted by the above  story is that the protections of EMTALA cease to apply if a patient is  admitted from the emergency room into the hospital, which may be one  mechanism by which religiously affiliated hospitals currently escape the  conflict while continuing to deny care.  In addition, if no one is  seeking to transfer a patient, EMTALA is silent on the quality of care  given to the patient, as courts have been clear that EMTALA does not, by  itself, set out a standard by which to judge medical negligence.  Ironically, then, if no physician seeks out a transfer to a facility  willing to provide more appropriate care, thus risking a violation of  EMTALA, patients may fall through the cracks, as  Freedman’s article  describes.

The Pitts bill would also allow institutions to insist on  policies that deny care to patients, even trumping the professional  judgment and medical training of physicians. Freedman’s report tells  one such story: a doctor appalled at the denial of care to a woman in  the midst of miscarriage – a woman so ill that her eyes filled up with  blood from the infection caused by the delay – subsequently quit his job  in disgust. While his decision to resign assuaged his conscience, the  next woman to find herself in a similar situation at that hospital may  be even worse off, because the hospital has lost at least one doctor who  prefers science-based medical care.

Nationally, one-sixth of hospital visits are to religiously-affiliated  hospitals, that serve millions of people. The notion that care would  differ so drastically from one emergency room to the next is out-of-step  both with public health needs and with the beliefs of even religious  adherents, who, polls indicate,  agree with the broader public that access to medical care should not be  restricted by religion. Women should not have to engage in a game of  Russian roulette at their local hospital emergency room.

Only physicians, not institutions, have a conscience.  Granting institutions a right of refusal merely guarantees that the very  real consciences of doctors who choose to provide care consistent with  their own beliefs and medical training will not be able to do so.  Chillingly, the Pitts bill would ensure that hospitals’ institutional  dictates, including those at odds with medical science, could override  the consciences of the doctors who work for them, even when those  dictates unreasonably risk women’s lives.

Originally posted to RH Reality Check on Tue Oct 18, 2011 at 02:35 PM PDT.

Also republished by Abortion.

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