Lives of pregnant people with disabilities in the hands of the Supreme court
Pregnant people with disabilities are particularly likely to need stabilizing abortion care mandated under EMTALA.
A decision from the Supreme Court is expected to be released any day now for the consolidated cases Idaho v. United States and Moyle v. United States. The decision will determine whether the lives and health of pregnant patients experiencing obstetric emergencies are protected by the federal law called the Emergency Medical Treatment and Labor Act (EMTALA)— or, conversely, whether a state can prevent pregnant women from receiving the essential emergency medical treatment that federal law guarantees to all Americans.
“This case centers on whether state laws that criminalize abortions are preempted by EMTALA’s guarantee of stabilizing medical treatment in emergency situations. EMTALA requires that all hospitals receiving Medicare funding provide emergency medical care for all people, regardless of wealth, insurance status, or other classifications. EMTALA states, ‘[i]f any individual . . . has an emergency medical condition, the hospital must provide . . . such treatment as may be required to stabilize the medical condition,’ or make an appropriate transfer to a facility that can provide such stabilizing care.”1
“When Congress passed this law, it sought to enshrine protections for emergency care for those most in need of medical care, and least likely to be able to access medical care.”2
“Congress enacted EMTALA to ensure that at-risk people—including people with disabilities—receive stabilizing medical treatment in emergency situations.”3 “People with disabilities fall squarely into this camp, as a group that faces significant obstacles to accessing medical care despite having a greater need for care. Recognizing this, Congress intended the passage of EMTALA to ease access to emergency medical care for disabled people. Indeed, EMTALA is not the only expression of Congress’s intent in this area; the law fits within a series of federal statutes reflecting a congressional desire to protect the rights of disabled people in the healthcare context. State laws that threaten access to emergency medical care for people with disabilities—including Idaho Code § 18-622 [Idaho’s abortion ban] and similar statutes—frustrate Congress’s intent in enacting these federal protections.”4
For pregnant Americans with disabilities, the stakes of the Court’s decision could not be higher.
People with disabilities already face “[m]ultiple barriers to accessing effective primary and prenatal care,”5 barriers that “place disabled people at risk of being denied access to medical care. These barriers include a lack of accessible transportation to health care providers, inaccessible medical facilities, a lack of adaptive medical equipment, provider bias, and doctors who are not trained to work with or accommodate disabled people. People with disabilities are also more likely to live in poverty, meaning they may lack the time and resources to procure effective primary and prenatal care, increasing their risk of complex pregnancies.”6
Disability advocacy groups and scholars submitted an Amici brief urging the Supreme Court to upholding EMTALA’s decades long protections. To better understand what is at stake for pregnant Americans with disabilities, portions of the Amici brief are excerpted below (references/citations have been removed for readability).
“Pregnant people with disabilities are particularly likely to need stabilizing abortion care mandated under EMTALA.”7
“[P]regnancies can be especially challenging for people with disabilities who have pre-existing complex health care needs that put them at greater risk for pregnancy complications or require additional support. In addition to the social factors that lead to risky pregnancies, such as lack of access to care, medical interactions between pregnancy and disability increase the likelihood of pregnancy complications. This, in turn, makes it more likely that people with disabilities will require emergency abortions as stabilizing treatment.
Pregnant people with physical, intellectual, and sensory disabilities face a “significantly higher risk of almost all adverse maternal outcomes” and are eleven times more likely to die during childbirth than non-disabled people. Along with other pregnancy-related complications, pregnant people with disabilities are twenty-three times as likely to develop sepsis (a dangerous inflammatory response to an infection that can result in organ failure and death); six times as likely to develop thromboembolism (blood clots in the lungs or veins of the legs which can result in tissue damage and death); four times as likely to develop severe cardiovascular issues (including heart attacks and other disorders of the heart and blood vessels); nearly three times as likely to develop an infection; twenty-seven percent more likely to experience hemorrhaging (uncontrollable blood loss), which is one of the leading causes of maternal mortality; and twelve percent more likely to experience placental abruption (the separation of the placenta from the uterine wall before birth) during pregnancy.
Notably, disabled pregnant people are more likely to experience severe preeclampsia or eclampsia (multi-system pregnancy disorders marked by high blood pressure) and premature rupture of membranes (“PPROM”) during pregnancy. Pregnant people with disabilities are twice as likely as non-disabled people to develop severe preeclampsia/eclampsia during pregnancy, which can result in seizures, destruction of red blood cells, low platelet count, kidney or liver damage or failure, and stroke, thus increasing the likelihood of placental abruption and hemorrhage. Placental abruption and hemorrhaging often lead to cardiac complications, which are likely to require abortion as emergency medical care. Because people with disabilities are already more susceptible to cardiac complications during pregnancy, preeclampsia and eclampsia are especially dangerous for pregnant people with disabilities. People with disabilities are also fifty-five percent more likely to experience PPROM during pregnancy. PPROM occurs when the amniotic sac around the fetus ruptures early, increasing the risk of infection and potentially causing sepsis or organ failure. Since pregnant people with disabilities experience higher risks of infection and sepsis, they are not only more likely to develop PPROM, but are much more likely to experience extreme consequences of PPROM such as organ failure.
Another way in which disabled people are especially likely to face dangerous pregnancies that require abortion as emergency treatment is that they may be required to suspend treatment for their underlying health conditions while pregnant. This makes them more susceptible to medical emergencies resulting from their underlying, temporarily untreated medical conditions. Pregnancy therefore can exacerbate other health risks for people with disabilities. For example, Natalizumab is a highly effective and frequently prescribed treatment for relapsing/remitting multiple sclerosis (“MS”). Yet, pregnant people with MS are often advised to suspend Natalizumab treatments during pregnancy. A recent study demonstrated that ceasing treatment of Natalizumab directly before or during pregnancy resulted in MS relapses during pregnancy or postpartum. These relapses were potentially life-threatening in one percent of the pregnancies.
For all these reasons, people with disabilities are more likely to have complex pregnancies that are more likely to ultimately require stabilizing care that might involve abortion. To remove EMTALA protection for such medically necessary care in deference to state abortion bans would be to place disabled people’s health and lives on the line.
“Without EMTALA’s protections, state abortion bans will undermine the medical system in important ways, causing additional harm to people with disabilities.”8
If EMTALA’s protections are not upheld in the face of state abortion bans that criminalize necessary stabilizing treatment, the medical system will be significantly impacted in ways that disproportionately harm disabled people. As other amici explain, a conclusion that EMTALA does not preempt state abortion bans will lead to a decline in the quality of care and a physician shortage in these states. Further, even when abortion is the medically indicated stabilizing treatment, physicians will be forced to wait for patients’ health conditions to worsen sufficiently to legally justify abortion. The presence of criminal statutes that threaten a doctor’s livelihood are likely to chill their willingness to provide an abortion even when abortion care is clearly the medically indicated treatment and is arguably allowed under the Idaho statute. Applying this practice, known as “expectant management,” when an emergency abortion is medically indicated is not only contrary to medical training, but also undermines the doctor-patient relationship as it supplants best medical practices and forces providers to withhold necessary treatment in contravention of a patient’s best interest. Providers throughout Idaho report denying and delaying care, including by performing extra tests, to ensure compliance with Idaho Code § 18-622—subjecting patients to potentially invasive and medically unnecessary procedures that they may not be able to afford…
Delaying care in emergency situations makes it more likely that a patient will die, with one study finding the risk of death from an emergency condition is generally between two and fourteen percent and increases by four percent for every hour that treatment is delayed. While all emergency situations are unique and present challenges, as described above, people with disabilities are more likely to have complex underlying medical conditions, and thus are more likely to suffer from these delays. By compelling emergency providers to delay treatment for people with disabilities who need abortion care and who already have complex health needs, Idaho’s law will be especially deadly for people with disabilities.
Delaying care not only increases a disabled pregnant person’s risk of death, but also makes it more likely that a pregnant person’s medical care will be unnecessarily traumatic. In Texas, a state with similar abortion restrictions, Elizabeth Weller (born with a physical disability called brachial plexus Erb’s palsy) was “excited” when she found out she was pregnant in 2022. At nineteen weeks into her pregnancy, she experienced PPROM. Her OB-GYN told her that the fetus was too underdeveloped to survive and that if she did not terminate her pregnancy, she could get an infection that would cause her to lose her uterus or even her life. She decided to get an abortion but reported feeling “traumatized” after she was barred from receiving an emergency stabilizing abortion because she “wasn’t sick enough to get an abortion.” Unable to receive the abortion her OB-GYN deemed necessary, Weller went home and spent three days deteriorating physically, mentally, and emotionally. She vomited consistently, had abdominal pain, and agonized over the fact that her fetus was dying inside of her. When Weller was readmitted to the emergency room three days later, she was diagnosed with chorioamnionitis, and was finally approved for an abortion. To Weller, the delay felt akin to “punishment” and made the “process of healing worse.”…[..]...
The low numbers of care providers [due to abortion bans driving away doctors in states which criminalize abortion healthcare] and long distances required to reach care are particularly concerning for patients with disabilities. Public transportation is often unavailable in suburban or rural settings, like Idaho. While the vast majority of Americans travel by personal vehicle, disabled people are less likely to drive and, as a result, often opt to travel less. Many people with disabilities rely on others to drive them to their medical appointments. As a result, their ability to obtain timely treatment often depends on the willingness and ability of others to assist with their travel. Consequently, disabled people are significantly more likely to arrive late to medical appointments, miss appointments, or delay their care due to transportation difficulties.
Because people with disabilities are more likely to live in poverty, they are less likely to be able to afford out-of-state travel to get emergency abortion treatment (even if they were well enough to travel). The higher rates of poverty experienced by people with disabilities are particularly relevant here, as one of the fastest ways of traveling out of state is via airplane, and the U.S. Bureau of Transportation Statistics reports that in 2023 the average domestic air itinerary cost $380. Of course, in addition to cost, the inaccessibility and other logistical challenges of air travel are common barriers for people with disabilities, even when they are not coping with an emergency medical situation.
Many of these consequences of allowing state abortion bans to negate EMTALA’s protections will harm all residents of these states. But for the reasons described above, they create particular difficulties for people with disabilities who reside in these states. The result will be frustration of a key congressional aim underlying the passage of EMTALA—ensuring that all people, and particularly those with disabilities, have access to necessary stabilizing treatment in emergency situations.
While the anti-reproductive-rights movement increasingly co-opts the language of disability rights to force women to carry doomed pregnancies to term, the health and lives of pregnant Americans with disabilities are in the hands of the Supreme Court. The stakes of the Court’s decision could not be higher.
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT
https://www.supremecourt.gov/DocketPDF/23/23-726/306207/20240328161118323_23-726%2023-727%20bsac%20DisabilityRightsAdvocatesAndScholars.pdf
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT
BRIEF OF DISABILITY RIGHTS ADVOCATES AND SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENT