Experts tell Court Idaho is wrong on EMTALA
“HHS has consistently interpreted the stabilizing care requirement in EMTALA to include abortion when clinically necessary.”
In its efforts to nullify federal protections for the health and lives of pregnant patients who require emergency abortions to prevent disability and death - guaranteed to patients by the Emergency Medical Treatment and Active Labor Act (EMTALA) - the state of Idaho is leaning heavily on a novel interpretation and revisionist history of the federal law. The below exposition addresses two of Idaho’s key claims.
Outline
EMTALA’s stabilizing-care requirement includes abortion
a. Pregnancy termination was recognized as an emergency medical treatment when EMTALA was enacted.
b. Conscience objections were enacted in recognition that stabilizing treatment includes abortions.
c. Federal enforcement actions include emergency abortions.
d. Congress has recognized that EMTALA requires necessary stabilizing abortions.
EMTALA sets a national minimum standard for stabilizing emergency medical conditions
EMTALA’s stabilizing-care requirement includes abortion
According to Idaho, because congress did not specifically list abortion as a stabilizing treatment in the Emergency Medical Treatment and Active Labor Act, EMTALA’s stabilizing-care requirement had not been understood to include abortion. “That is mistaken: HHS long has understood that stabilizing care under EMTALA can include an abortion.” [1]
🟩 Pregnancy termination was recognized as an emergency medical treatment when EMTALA was enacted.
As noted by legal scholars, “At the urging of physicians, the Congress that enacted EMTALA in 1986 chose to define the ‘stabilizing’ treatments required in certain medical emergencies by incorporating clinical guidelines, rather than by attempting to list procedures,” such as abortion, gallbladder removal, appendectomy, etc. [2] In 1986, the year EMTALA was enacted, “terminating a pregnancy was a permitted medical treatment not only to save a patient’s life, but also to prevent substantial risks to her health. Even states that banned third-trimester abortions exempted abortion ‘to preserve the life or health of the woman.’ E.g., Wisc. Stat. § 940.15(2)-(3) (1985) (emphasis added). It is no surprise, therefore, that since EMTALA’s enactment, practitioners have acknowledged their statutory obligation to provide abortion care in those rare emergencies in which terminating a pregnancy is the necessary ‘stabilizing’ treatment. That is how ‘most people * * * would have understood’ the statutory language when it was enacted. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019).” [3]
🟩 Conscience objections were enacted in recognition that stabilizing treatment includes abortions.
An amicus brief filed with the U.S. Supreme Court by former HHS officials further disproves Idaho’s assertion. The former HHS officials “have significant expertise regarding EMTALA as a result of their experience leading HHS and CMS (totaling more than 40 years of government service). They have particular knowledge of EMTALA’s requirements from their roles administering and enforcing EMTALA” (emphasis mine). [4] These expert, former officials served under multiple presidential administrations beginning in 1986, *the year EMTALA was enacted. They “file[d] this brief to explain that EMTALA always has been understood to require a covered hospital to provide an abortion if that procedure is necessary to stabilize the patient.” [4]
The officials note that, in multiple pre-Dobbs rulemakings, “HHS expressly recognized that stabilizing care under EMTALA can include abortion,” and thus included conscience exceptions. [5] For example, “In 2008, HHS promulgated a right-of-conscience rule. That rule was designed to ensure that federal agencies, state and local governments, and institutions that received federal funds could not require healthcare providers to perform medical procedures to which the providers have sincere religious or moral objections. See Ensuring that HHS Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78,072, 78,087-88 (Dec. 19, 2008). The rule was intended to implement certain provisions in the Church Amendments, 42 U.S.C. 300a-7, the Public Health Service Act, 42 U.S.C. 238n, and the Weldon Amendment to the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 1212 Stat. 1844 (2007). Id. at 78,072-73.” [6] “In particular, the rule sought to prevent any recipient of HHS funds from ‘[s]ubject[ing] any institutional or individual health care entity to discrimination for refusing * * * [t]o perform, refer for, or make other arrangements for, abortions’” (emphasis mine). [7] “HHS’s rulemaking accordingly make clear that it consistently has understood that EMTALA’s stabilizing-care requirement could require a hospital to provide a patient with an abortion.” [8] Were abortions not included in EMTALA’s stabilizing care, there would be no need for conscience exceptions.
🟩 Federal enforcement actions include emergency abortions.
As the officials note, the Centers for Medicare and Medicaid Services (CMS), a component of HHS, is charged with administering and enforcing EMTALA, investigating complaints that hospitals failed to adhere to the law's requirements. If a hospital has been found to have violated EMTALA, CMS publishes its determinations…, known as ‘statements of deficiencies,’ on its website.” [9] CMS’s website currently includes statements of deficiencies going back to October 2010. Across decades, CMS has “issued multiple statements of deficiencies for hospitals that failed to provide stabilizing care that included abortion.” [10] The officials point to three examples:
🟢 In 2012, CMS issued a statement of deficiency against Ascension St. John Hospital in Detroit, Michigan, for failing to provide an abortion. CMS, Statements of Deficiencies (Event ID V2DH11). The statement explains that the patient arrived at the hospital 17 to 23 weeks pregnant with heavy vaginal bleeding. Ibid. The hospital diagnosed the patient with an “inevitable abortion” (a type of miscarriage where the cervix has dilated and the loss of the pregnancy cannot be stopped). Ibid. But the hospital did not perform an abortion because its staff could detect fetal “heart tones,” and the hospital’s policy prevented its staff from performing abortions if fetal heart tones are present. Ibid. The patient stayed at the hospital, bleeding and with an unstable heart rate, for six hours before leaving in a “private vehicle” to go to a second hospital for an abortion. Ibid. CMS determined that the hospital violated EMTALA by failing to provide the required stabilizing treatment (i.e., an abortion). [11]
🟢 Also in 2012, CMS issued a statement of deficiency to SSM Health St. Anthony Hospital in Shawnee, Oklahoma, for failing to stabilize a patient with a possible ectopic pregnancy. CMS, Statements of Deficiencies (Event ID 6K4911). The statement explains that the patient presented with “lower abdominal pain and symptoms consistent with ectopic pregnancy.” Ibid. The ER physician ordered an ultrasound and consulted with an on-call obstetrician, but the obstetrician did not examine the patient personally. Ibid. The ultrasound revealed a mass and free fluid that were consistent with an ectopic pregnancy. Ibid. The statement explains that in the event of an ectopic pregnancy, “[t]he developing cells must be removed to save the mother’s life.” Ibid.; see Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin No. 193, Tubal Ectopic Pregnancy. The hospital did not perform any additional examination to confirm that the patient had an ectopic pregnancy and discharged the patient without providing further stabilizing care. CMS, Statements of Deficiencies (Event ID 6K4911). Eight hours later, the patient went to a second hospital, which confirmed that the patient had an ectopic pregnancy and terminated the pregnancy. CMS, Statements of Deficiencies (Event ID 6K4911). CMS concluded that the first hospital “failed to provide stabilizing treatment” required under EMTALA by failure to resolve the probable ectopic pregnancy. [12]
🟢 In 2018, CMS issued a statement of deficiency to Saint Francis Hospital in Tulsa, Oklahoma, for failing to terminate a patient’s ectopic pregnancy. CMS, Statements of Deficiencies (Event ID L67011). The statement explains that the patient, who was six weeks pregnant, arrived at the hospital complaining of cramping and vomiting. Ibid. The hospital determined that the pregnancy was ectopic, but told the patient that under its policies, it could not terminate the pregnancy because of the presence of a “fetal heartbeat.” Ibid. That was inaccurate: Under the hospital’s policies, the hospital could perform a surgical abortion but could not provide a medication abortion. Ibid. The hospital transferred the patient to a second hospital for treatment. Ibid. CMS concluded that the first hospital’s failures to provide the “required medical treatment [or] surgical intervention” instead of transferring the patient violated EMTALA’s stabilizing-care requirement. [13]
“These examples all confirm that HHS consistently has understood that, in certain circumstances, abortion can be necessary stabilizing care under EMTALA. This was a longstanding view that pre-dated this Court’s decision in Dobbs. In this litigation, the government simply is defending the policy choice that Congress made when it enacted EMTALA.” [14]
🟩 Congress has recognized that EMTALA requires necessary stabilizing abortions.
Importantly, “Congress itself has recognized that stabilizing care under EMTALA can include abortion in certain circumstances. Specifically, in the Patient Protection and Affordable Care Act, Pub. L. No. 111- 148, 124 Stat. 119 (2010), Congress enacted special provisions related to abortion. 42 U.S.C. 18023. For example, Congress allowed states to choose to prohibit abortion coverage in health plans offered on a health exchange, 42 U.S.C. 18023(a), and prohibited any health plan offered on a health exchange from discriminating against a healthcare provider because of its refusal to perform abortions, 42 U.S.C. 18023(d). But Congress specified that none of those provisions (and indeed nothing in the entire Act) “shall be construed to relieve any health care provider from providing emergency services as required by * * * section 1395dd of this title (popularly known as ‘EMTALA’).” 42 U.S.C. 18023(d). This provision – and its placement in the section pertaining specifically to abortion – make clear that Congress understood that stabilizing care under EMTALA could include abortion services” (emphasis mine). [15]
“Thus,” the officials explain, “although EMTALA does not expressly address abortion, because abortion can be necessary to stabilize an emergency medical condition, fulfilling EMTALA’s stabilizing-care requirement can include providing that care.” [16]
EMTALA sets a national minimum standard for stabilizing emergency medical conditions
The State of Idaho “asserts that EMTALA’s stabilizing-care requirement does not establish a nationwide standard for stabilizing care, but instead requires only that covered hospitals provide indigent patients with the same level of emergency care that they would provide to paying patients under state law. That is incorrect. HHS [which administers and enforces EMTALA] always has understood EMTALA’s stabilizing-care requirement to set out a national standard that all covered hospitals must meet for all patients regardless of their ability to pay.” [17]
As noted above, “At the urging of physicians, the Congress that enacted EMTALA in 1986 chose to define the ‘stabilizing’ treatments required in certain medical emergencies by incorporating clinical guidelines, rather than by attempting to list procedures,” such as abortion, gallbladder removal, appendectomy, etc. [18] “The stabilizing-care requirement sets a national minimum standard for stabilizing emergency medical conditions that preempts state laws allowing a hospital to provide a lesser level of care.” [19] “In the appropriate circumstances, that stabilizing care can include abortion.” [20]
As the expert, former officials explain, “EMTALA directs HHS to apply a national standard in assessing whether a hospital has provided stabilizing care. Specifically, the statute instructs HHS to use a ‘quality improvement organization’ to evaluate whether a hospital provided appropriate stabilizing care in a particular case. 42 U.S.C. 1395dd(d)(3); see pp. 16-17, infra. A ‘quality improvement organization’ is an organization under contract with HHS that applies ‘professionally developed norms of care’ to review the services provided by Medicare providers. 42 U.S.C. 1320c-3(a)(6)(A). Congress specifically required that a quality improvement organization make its assessment based on ‘national norms.’ Ibid. (emphasis added).” [21] Accordingly, HHS “has recognized that quality improvement organizations apply ‘national standards that are clearly linked to better patient outcomes.’ CMS, QIO Fact Sheet: Overview (2009), https://perma.cc/7HPK-JWSF. EMTALA’s requirement that HHS use quality improvement organizations to enforce EMTALA’s stabilizing-care standard thus confirms that the standard is a national one.” [22]
EMTALA’s stabilizing-care requirement is context-specific. “Stabilizing care is the treatment ‘as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from’ the patient’s discharge from the hospital or transfer to another facility. 42 U.S.C. 1395dd(e)(3)(A), (e)(4).” [23] Thus, a “hospital’s obligation to provide stabilizing care ends when the patient has been stabilized and the emergency medical condition has been resolved.” [24] For example:
🟢 [S]ome emergency medical conditions, the appropriate stabilizing care includes abortion… [A]n abortion can be required to stabilize a patient experiencing an emergent hypertensive disorder (high blood pressure) such as preeclampsia, or an acute thrombotic event (blood clots). Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin No. 222, Gestational Hypertension and Preeclampsia (June 2020); Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin No. 196, Thromboembolism in Pregnancy (July 2018). Left untreated, those conditions could severely and permanently impair the patient’s cardiovascular system, and in some circumstances could even threaten the patient’s life. See ibid. An abortion could be appropriate stabilizing treatment for a patient with those emergency medical conditions. [25]
The Emergency Medical Treatment and Active Labor Act clearly “establishes a national minimum standard of care that covered hospitals must provide to stabilize patients with emergency medical conditions. In the appropriate circumstances, that stabilizing care can include abortion.” [26]
Summary
The Emergency Medical Treatment and Active Labor Act (EMTALA) “is a vital component of our Nation’s healthcare system. It ensures that those who urgently need care can obtain it. HHS, which administers EMTALA, has long understood that in appropriate circumstances, that care can include abortion.” [27]
This federal law “requires all hospitals that participate in Medicare and that have an emergency department – which is virtually all major and many smaller hospitals in the United States – to provide care to patients with emergency medical conditions, regardless of their ability to pay. In particular, EMTALA specifies that when a patient arrives at a covered hospital needing emergency care, the hospital either must provide the care needed to stabilize the patient before it can discharge the patient, or must safely transfer the patient to a hospital that is capable and willing to provide that care. The stabilizing-care requirement sets a national minimum standard for stabilizing emergency medical conditions that preempts state laws allowing a hospital to provide a lesser level of care.” [28]
“For some emergency medical conditions, the necessary stabilizing care can include an abortion. Those conditions include internal bleeding due to an ectopic pregnancy, emergent high blood pressure due to preeclampsia, and acute blood clots due to thromboembolism. Each of those emergency conditions could seriously impair a patient’s bodily functions or organs or even threaten the patient’s life, and in many cases an abortion is the only appropriate treatment to stabilize the condition. Thus, although EMTALA does not directly address abortion, a hospital may be required to provide an abortion in certain circumstances to fulfill its duty to stabilize the patient.” [29] This has held true across decades; “HHS has consistently interpreted the stabilizing care requirement in EMTALA to include abortion when clinically necessary.” [30]
Citations:
[1] Brief for Former HHS Officials as Amici Curiae Supporting Respondent. March 28, 2024. (P. 11). https://www.supremecourt.gov/DocketPDF/23/23-726/306169/20240328145306815_Moyle%20v.%20Idaho%20Former%20HHS%20Amicus%20Brief%20PDFA.pdf
[2] Brief amici curiae of Legal Scholars. March 28, 2024. (P. 2). https://www.supremecourt.gov/DocketPDF/23/23-726/306163/20240328144635546_23-726%20and%2023-727%20FINAL%20Amici%20Brief%20rtf.pdf
[3] Ibid. 2, p. 2-3
[4] Brief for Former HHS Officials as Amici Curiae Supporting Respondent. March 28, 2024. (P. 2). https://www.supremecourt.gov/DocketPDF/23/23-726/306169/20240328145306815_Moyle%20v.%20Idaho%20Former%20HHS%20Amicus%20Brief%20PDFA.pdf
[5] Ibid. 4, p. 11
[6] Ibid. 4. P. 11-12
[7] Ibid. 4, p. 12
[8] Ibid. 4, p. 14
[9] Ibid. 4, p. 17
[10] Ibid. 4, p. 17
[11] Ibid. 4, p. 17
[12] Ibid. 4, p. 17-18
[13] Ibid. 4, p. 18-19
[14] Ibid. 4, p. 19
[15] Ibid. 4, p. 10-11
[16] Ibid. 4, p. 11
[17] Ibid. 4, p. 6
[18] Brief amici curiae of Legal Scholars. March 28, 2024. (P. 2). https://www.supremecourt.gov/DocketPDF/23/23-726/306163/20240328144635546_23-726%20and%2023-727%20FINAL%20Amici%20Brief%20rtf.pdf
[19] Brief for Former HHS Officials as Amici Curiae Supporting Respondent. March 28, 2024. (P. 3). https://www.supremecourt.gov/DocketPDF/23/23-726/306169/20240328145306815_Moyle%20v.%20Idaho%20Former%20HHS%20Amicus%20Brief%20PDFA.pdf
[20] Ibid. 17, p. 4
[21] Ibid. 17, p. 7-8
[22] Ibid. 17, p. 8
[23] Ibid. 17, p. 9
[24] Ibid. 17, p. 9
[25] Ibid. 17, p. 9-10
[26] Ibid. 17, p. 4
[27] Ibid. 17, p. 2
[28] Ibid. 17, p. 3
[29] Ibid. 17, p. 3
[30] Ibid. 17, p. 3-4
If the government is right then it’s right. If an abortion is what’s needed to stabilize an emergent condition like excessively high blood pressure due to eclampsia or excessive bleeding due to ectopic then it must be done. These are life threatening and or life altering conditions. Could you imagine being permanently disabled because of a pregnancy gone wrong? Permanent disability such as kidney failure. It’s far easier to perform an abortion than to be on permanent hemodialysis for the rest of your life. Kidney dialysis is covered by medicare because it is considered a disability but doing an abortion is far cheaper than putting someone on permanent hemodialysis. EMTALA is right and we need this kind of protection from a theocratic autocratic regime put out by the Republican administration that has turned rogue.