Women in the United States have the highest rate of maternal mortality among high-income countries and three times higher among African-American mothers--with rates similar to developing countries--compared to white mothers. Also, "Pregnant Women Living in States with Limited Access to Abortion Face Higher Levels of Intimate Partner Homicide.” Only four countries have rolled back the legality of abortion—the United States, Nicaragua, Poland and El Salvador.
Women are a necessary part of the U.S. military, so any threat to their health and well-being is a threat to national security. The reproductive health of our active-duty service women and their civilian peers who work for the Department of Defense is extremely important but now in jeopardy because of the Supreme Court, which isn’t denied access to any kind of health care.
The federal Emergency Medical Treatment & Labor Act (EMTALA) requires emergency rooms to provide stabilizing treatment to patients in emergency situations. Since it was signed into law by Republican President Ronald Reagan, the federal government–across Democratic and Republican administrations–has recognized that EMTALA requires hospitals to provide emergency abortion care to any patient who needs it. For nearly 40 years, EMTALA has guaranteed the right to emergency care for pregnant patients in need. (When he was governor of California, Ronald Reagan signed a bill that legalized abortion.)
Because of EMTALA, you can't be denied a medical screening exam or treatment for an emergency medical condition based on whether or not you have health insurance, can pay for treatment or because of your race, color, national origin, sex, religion, disability, age or if not a U.S. citizen. Hospitals must offer a screening exam. If the emergency medical condition can't be stabilized by facilities available, they must offer transfer to a hospital that does, after explaining the benefits and risks.
After the Dobbs decision that overturned Roe v. Wade, Health and Human Services issued guidelines regarding the enforcement of EMTALA. The guidance clarified that hospitals and physicians have obligations to provide stabilizing care, including abortion, if that is the necessary stabilizing treatment when a patient is experiencing an emergency medical condition:
EMTALA Preempts State Law Abortion Bans
"On the heels of President Biden’s July 8th, 2022 Executive Order to Protect Access to Reproductive Health Care, the Department of Health and Human Services (“HHS”) issued clarifying guidance on July 11, 2022 with respect to the obligations of hospitals under the Emergency Medical Treatment and Labor Act (“EMTALA”) for patients seeking reproductive healthcare services. More specifically, upon patients presenting to an emergency department, EMTALA requires hospitals to: (i) have a qualified person provide a medical screening examination (“MSE”) to determine the existence of an emergency medical condition; and (ii) stabilize any emergency medical condition found, or appropriately transfer the patient to the extent that the emergency department does not have the requisite expertise to handle the medical emergency or the patient requests transfer.
"Under EMTALA, an emergency medical condition involving pregnant patients includes, but is not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features. Stabilizing treatment could include medical and/or surgical interventions such as abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy, etc., regardless of state law prohibitions on specific procedures, as the examining physician (or other qualified medical person) is responsible for determining the course of treatment necessary to stabilize emergency medical conditions.
"Thus, according to HHS’ guidance, if a physician believes that a pregnant patient presenting at an emergency department (including certain labor and delivery departments) is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment—and if a state law prohibits abortion and does not include an exception for the life and health of the pregnant person, or if the state law contains more narrow exceptions than EMTALA’s emergency medical condition definition, that state law is preempted.
"Fear of violating state law cannot be the basis for a physician deciding to transfer a patient, or preventing a physician from completing a transfer, nor can a physician escape EMTALA liability by mistakenly following a state law that prohibits abortion or transfer of a patient for an abortion if the original hospital does not have the capacity to provide such services.”
"If you are a patient:
• If you present to the emergency department, you must be offered an appropriate medical screening examination to determine if you have an emergency medical condition. If you do, your health care providers in the emergency department are not permitted to wait until your emergency medical condition deteriorates before they provide stabilizing treatment.
• The enforcement of EMTALA is a complaint driven process. If you or someone you know did not receive the emergency stabilizing medical care to which they were entitled, you can file an EMTALA complaint either by contacting your state’s survey agency or by using the Centers for Medicare & Medicaid Services webform.
"If you are a health care provider:
• For frontline health care providers, EMTALA requires a hospital to provide stabilizing medical treatment to any pregnant patients presenting to the hospital with an emergency medical condition, regardless of any directly conflicting restrictions in the state where you practice.
• This means that physicians and other qualified medical personnel are required by federal law to offer stabilizing medical treatment (or an appropriate transfer) to a patient who presents to the emergency department and is found to have an emergency medical condition. This requirement preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment, such as state prohibitions or restrictions on abortions.
• Stabilizing treatment could include medical and/or surgical interventions (such as abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, or methotrexate therapy), irrespective of any directly conflicting state laws or mandates that apply to specific procedures.”
"Hospitals and other medical facilities that refuse to abide by the EMTALA guidelines could lose their Medicare and Medicaid provider agreements and face stiff civil penalties and individual physicians or providers could be fined if they violate the law's requirements."
The Biden administration sued Idaho to block enforcement of its abortion ban, arguing that it violated EMTALA by denying women abortions in emergency situations. Idaho bans abortions in almost all cases, with exceptions to save the life of the pregnant woman or when the pregnancy is the result of rape or incest.
Idaho argued that the federal law only requires “stabilizing treatment for the unborn children of pregnant women.” Can there be “stabilizing treatment for the unborn"
without "stabilizing treatment" for the woman carrying the unborn? Article VI of the U.S. Constitution says federal law is the "supreme law of the land,” so judges in every state must follow the federal government's Constitution, federal laws, and treaties in matters directly or indirectly within the government's control.
