"Prolonged suffering"

Maternal healthcare in a state without EMTALA protections

Apr 08, 2024

In an amicus brief submitted to the Supreme Court, Idaho's largest healthcare system describes a bleak state of maternal healthcare under the state's abortion ban.

On April 24, 2024, the U.S. Supreme Court, henceforth referred to as SCOTUS, will hear oral arguments in a case that will determine whether the lives and health of pregnant patients experiencing obstetric emergencies are protected by the federal law (the Emergency Medical Treatment and Active Labor Act)— or, conversely, “whether a state can prevent pregnant women from receiving the essential emergency medical treatment that federal law guarantees to all Americans.”

The case originates out of Idaho. You can find an overview of the case in the newsletter, “EMTALA: The Supreme Court's next big abortion case.” At the beginning of January, the U.S. Supreme Court lifted a federal court’s injunction that had barred Idaho from criminally prosecuting Emergency Department physicians who perform emergency abortions to stabilize patients experiencing catastrophic pregnancy complications. I wrote about this in the newsletter, “Equal protection— unless you are pregnant?” The fact that the U.S. Supreme Court allowed Idaho to fully enforce its ban by lifting the federal; court’s injunction is a worrisome indicator that SCOTUS is likely to rule in favor of Idaho.

In March, one of Idaho’s healthcare systems submitted an amicus brief urging the U.S. Supreme Court to rule in favor of the United States (against Idaho). St. Luke’s Health System, Ltd. is the largest healthcare system in Idaho, with hospitals and clinics across the state. It’s also Idaho’s largest private employer. The amicus brief submitted by St. Luke’s Health System, Ltd. paints a bleak picture of the state of healthcare under Idaho’s harsh abortion ban (Idaho Code § 18-622), “offering first-hand insight into what transpires in Idaho’s emergency departments and how § 18-622 imperils patient care.” [2]

Under Idaho’s abortion ban (§ 18-622), “[e]very person who performs or attempts to perform an abortion . . . commits the crime of criminal abortion,” a felony punishable by two to five years imprisonment. [3] “Abortion” is defined in the statute as “the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.” [4] While Idaho’s ban includes an exception to stop a pregnant patient’s death, St. Luke’s notes that “there is still no exception to preserve the mother’s underlying health, bodily organs, fertility, or the other irreparable harms women may experience. EMTALA requires stabilizing treatment for any ‘emergency medical condition,’ not just those treatments intended to prevent death.”

The brief explains that, “[p]rior to § 18-622 taking effect, when a pregnant patient presented to an emergency room with serious complications, physicians would follow their training and federal law. If termination was necessary to stabilize a patient whose health was in serious jeopardy, their training and federal law indicated that a termination should be performed upon the patient’s consent.” [5] But, “Idaho Code § 18-622 has disrupted that care, criminalizing what previously had been mandated.” [6]

By its terms, § 18-622 chills health care providers from administering care necessary to stabilize pregnant patients whose health is in jeopardy. And notwithstanding the limited exception to prevent the death of the patient, the law does not permit termination where necessary to otherwise stabilize the patient’s health. In those situations, if a patient has no option but to continue their pregnancy, they will suffer—potentially gravely. The conditions that call for termination can be extremely painful. If untreated, they can cause serious health complications, including systemic bleeding, liver hemorrhage and failure, kidney failure, stroke, seizure, pulmonary edema, and more… And often, it is patients with wanted pregnancies who must make the heart-wrenching decision to terminate to avoid these complications—including, in some cases, to preserve their future ability to have children. [7]
When these situations arise, they are agonizing for the patient, as their joy in expecting a new baby turns to tragedy. This tragedy is compounded when they learn the care that is needed cannot be provided in their own state, making it likely they will suffer irreparable health consequences in addition to the loss of their expected child. Moreover, the health consequences of delayed care can also be long term, making it difficult for them to care for any existing children they have at home. [8]
… These delays ultimately harm the critically ill pregnant patient along with other patients in the Emergency Department whose providers must scramble to cover additional patients as other providers debate with lawyers as to whether the indicated care is permissible under Idaho law and when it may be administered. [9]

According to the brief, these “harms are not hypothetical: [They are] already taking place in Idaho’s emergency departments, with dire consequences for the affected physicians, patients, and their families,” [10] and “is already causing considerable harm to the Idaho public by delaying and disrupting patient care.” [11]

Since the Court vacated the district court’s injunction in January, Idaho providers have been all but paralyzed by legal uncertainties—and patients’ health has suffered. Several patients have presented with previable, preterm, premature rupture of membranes—i.e., spontaneous rupture of the membrane containing a fetus before 22 weeks of gestation. This is a life-threatening condition with high risk of infection, sepsis, and bleeding from placental abruption, and for which the standard of care includes termination. Prior to 22 weeks of gestation, a neonatal intensive care unit (NICU) would not even attempt to resuscitate, as the fetus could not survive. Given the legal uncertainty surrounding § 18-622, however, these patients are now being transferred out of state unless they are at imminent risk of death. [12]

The brief notes that St. Luke’s “physicians have expressed that this practice has put patients at risk due to significant delays in care while arranging medical transport out of state. And if those delays create a situation where the patient is no longer stable enough that the benefits of transfer outweigh the risks, then Idaho physicians are left to wait until termination is necessary to prevent the patient’s death, knowing that the wait could have severe health consequences, including damage to the patient’s future reproductive health. St. Luke’s physicians have described a constant fear that patients will present in an emergency room who are not stable enough to transfer, yet the medically indicated stabilizing care— termination—cannot be provided because it is not yet needed to prevent the patient’s death.” [13]

This, according to the brief, has led to “prolonged suffering.” [14]

Because [the abortion ban] allows termination of a clinically diagnosable pregnancy only where necessary to prevent death, it encourages providers to delay medically-necessary treatment until the patient is close to death, even though the provider understands that the condition will inevitably worsen and even though the patient suffers in the meantime. Said differently, even if the health of the pregnant patient is in serious jeopardy—where she may suffer a lifetime of debilitating complications and excruciating pain if she does not receive an emergency termination—so long as the suffering is short of death, even the amended § 18-622 provides no exception. EMTALA exists to prevent this deterioration. (emphasis mine) [15]

Idaho has an extreme shortage of physicians that is “both caused and exacerbated by the lack of a single OB-GYN residency program in the State of Idaho: that gap means that every OB-GYN physician must be recruited to Idaho from out of state.” [16] However, the brief explains, Idaho’s abortion ban has only “worsen[ed] these provider shortages by deterring medical professionals from practicing in Idaho.” [17] St. Luke’s refers to the ability of hospitals in Idaho to recruit new physicians as “fraught.” [18] Since the enactment of Idaho’s abortion ban, the brief states, “St. Luke’s has had markedly fewer applicants for open physician positions, particularly in obstetrics. And several out-of-state candidates have withdrawn their applications upon learning of the challenges of practicing in Idaho, citing § 18-622’s enactment and fear of criminal penalties. Program directors in other states have said they will no longer recommend to any of their fellows that they consider job opportunities in Idaho. Again, this mirrors the pattern statewide: As the president of the Idaho Hospital Association explained in an interview with the Statesman, physicians are refusing in droves to come to a state that criminalizes physicians’ efforts to safeguard their patients’ health.” [19]

Idaho’s physician shortage has gone from bad to worse under Idaho’s abortion ban:

Now, there are only three fulltime and two part-time MFM specialists left in the entire state—less than half from before § 18-622 took effect. Moreover, ten of the OB-GYNs in the Panhandle region of Idaho alone have left the state or resigned; several OB-GYNs in Boise have transitioned to GYN-only practice, meaning they will no longer provide obstetric care; three midwives have resigned or relocated out of state; and many of St. Luke’s remaining providers are seriously considering reducing their practice, moving, or retiring early. This mirrors the pattern statewide: in the fifteen months after § 18-622’s enactment, 22% of Idaho obstetricians have stopped practicing in the state.15 Now, there is one obstetrician per 8,510 Idahoans.16 And the problem may worsen still: Over half of Idaho OBGYNs surveyed in 2023 were considering leaving Idaho; of those, 96% said they would reconsider or very likely stay if a health exception was added to the state’s abortion law. [20]
As a result of provider shortages, hospitals are simply shutting down their labor and delivery services. Dr. Huntsberger’s hospital, Bonner General Health, no longer provides any obstetrical care.20 Valor Health, the only hospital in Emmett, closed its obstetrics program as well. And West Valley Medical Center has announced the closure of its labor and delivery and neonatal intensive care units effective April 1, 2024. These sorts of closures can only be expected to proliferate as more doctors leave and few, if any, are willing to move to Idaho to take their places. [21]
The consequences of provider shortages are serious. Without enough physicians and nurses to provide medical care to a community, the quality of care suffers, wait times for an appointment increase, and practitioners become overworked and stressed, causing burnout and—in a vicious cycle—deterring others from entering the medical field or practicing here, which only compounds the shortages going forward. Again, these consequences are felt by far more than just the pregnant patients most directly affected by § 18-622. By making it materially more difficult to attract and retain OB-GYNs, family practitioners, emergency physicians, maternity nurses, and other medical providers, Idaho Code § 18-622 harms public health statewide. [22]

In Idaho today, a physician shortage is worsening; emergency patients are being transferred out of state in the midst of medical emergencies; other emergency patients are waiting in fear for their emergent conditions to deteriorate enough to get abortion care; physicians are living in fear of running afoul of the law. Meanwhile, nine U.S. Supreme Court justices with zero medical expertise have the future of emergency medicine and the fates of pregnant patients in their hands.

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