Supreme Court lets Texas deny patients abortions in obstetric emergencies

This is the “culture of life” — a culture wherein the cruelty is the point.

Oct 08, 2024

I hope you took your Dramamine®, because the 2024-2025 term of the United States Supreme Court began yesterday. You are now the passenger in a stagecoach being battered to hell across rough terrain, pulled behind six runaway Republican horses barreling ahead at full speed toward the edge of a cliff. There are no seat belts or safety bars on this ride, and no one has control of the reins. Yippee!

The Court appears to have “stopped worrying about the impact of its behavior on public confidence in the institution” or the ways its most politically partisan decisions negatively affect real people on the ground.1

The 6-3 Republican supermajority on the Supreme Court is already smashing things, like bulls in a China shop, sending its own credibility careening toward non-existence— starting with emergency obstetrics care. The Emergency Medical Treatment and Active Labor Act (EMTALA), as it pertains to pregnant human beings actively experiencing catastrophic obstetric emergencies, is officially dead in Texas. Sorry, Texans.— If you get pregnant, you no longer have a right to life.

— Or to health.

— Or to emergency stabilizing medical care.

— Or to keep that kidney you've been relying on for all these years.

Because the scandal-ridden, black-robed overlords on the bench say so.

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a 1986 federal law that requires all hospitals that receive federal Medicare/Medicaid funds to stabilize every patient who seeks help in a hospital emergency room and who, upon being assessed, is found to be experiencing a medical emergency, ensuring that the patient’s condition does not continue to deteriorate.

EMTALA's “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” (emphasis mine).2 “In the appropriate circumstances, that stabilizing care can include abortion.”3 For people who are pregnant, “EMTALA’s promise is limited but profound: No one who comes to an emergency room in need of emergency medical care should be denied the treatment required to stabilize her condition. For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy. In those circumstances, EMTALA requires” hospitals that receive federal Medicare/Medicaid funds “to offer such care.”4

The Centers for Medicare and Medicaid Services (CMS), a component of HHS, is charged with administering and enforcing EMTALA and investigating complaints that hospitals failed to adhere to the law's requirements. Hospitals that fail to provide necessary stabilizing care to emergency room patients risk losing Medicare/Medicaid funds. “If a hospital has been found to have violated EMTALA, CMS publishes its determinations…, known as ‘statements of deficiencies,’ on its website.”5

Following the Supreme Court's Dobbs decision overturning Roe v. Wade, the Biden administration issued guidance reminding hospitals that:

“The EMTALA statute requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment.”

The Biden administration was right to be concerned that, following the Dobbs decision, hospitals in states with draconian abortion bans may fail to provide the national standard of care in obstetric emergencies. An Associated Press analysis of federal investigations into hospitals for violating EMTALA found that “more than 100 pregnant women in medical distress who sought help from emergency rooms were turned away or negligently treated” since the Dobbs decision.6 For example, “one woman miscarried in the lobby restroom of a Texas emergency room as front desk staff refused to check her in. Another woman learned that her fetus had no heartbeat at a Florida hospital, the day after a security guard turned her away from the facility. And in North Carolina, a woman gave birth in a car after an emergency room couldn’t offer an ultrasound. The baby later died.”7 “Two women — one in Florida and one in Texas — were left to miscarry in public restrooms. In Arkansas, a woman went into septic shock and her fetus died after an emergency room sent her home.”8 At least two women in Texas were denied treatment for tubal ectopic pregnancies until their fallopian tubes burst.9 “At least four other women with ectopic pregnancies had trouble getting treatment” because of their states’ abortion bans.10

“The cases raise alarms about the state of emergency pregnancy care in the U.S., especially in states that enacted strict abortion laws and sparked confusion around the treatment doctors can provide.”11

After the Biden administration’s guidance was sent out shortly after the Dobbs decision, “Texas sued to block EMTALA as it applies to [obstetric emergencies requiring] abortion care, arguing that the life exception in its abortion law was sufficient and that federal guidance was not required. The EMTALA letter from HHS, however, would allow abortion care in situations where a person’s life or health is in jeopardy, while the Texas law allows for abortions only when a person’s life is at risk— a standard that is often not granted even in life-or-death circumstances, as dozens of examples (in Texas and elsewhere in the U.S.) have shown.”12

At the time that Texas’s Human Life Protection Act took effect, it was theorized that the law included a narrow health exception for the prevention of “substantial impairment of a major bodily function.” However, because of the structure of the language in the law, including the absence of a comma separating the language regarding a patient’s life from the language regarding a patient's health, it remained unclear whether or not the ban included a health exception at all. A Texas Supreme Court ruling in November 2023, answered this question: The Court subordinated and subsumed the language regarding a patient’s health into the life exception, eliminating the stand-alone health exception.13 In a subsequent ruling, in May 2024, the Texas Supreme Court reiterated that a pregnant patient must first have “a life-threatening physical condition” before the patient qualifies for an emergency abortion to avert the patient’s death or “substantial impairment of a major bodily function.” The ruling states, “The statute requires that the mother have a “life-threatening physical condition,” and that “[t]he life-threatening physical condition must ‘place the female at risk of death or pose a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.’ The physician’s reasonable medical judgment must be that an abortion will avert the risk posed by the mother’s life-threatening physical condition.”

Because Texas only has a life exception for obstetric emergencies, it conflicts with the Emergency Medical Treatment and Active Labor Act. According to the Supremacy Clause of the United States Constitution, when federal law conflicts with a state’s law, the federal law ‘shall be the supreme Law of the Land’.

Despite all of the above, the Fifth Circuit Circuit of Appeals in January ruled in favor of Texas and the other plaintiffs, the American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG) and the Christian Medical and Dental Associations (CMDA), blocking the federal government from enforcing EMTALA’s protections for pregnant patients. Despite nearly 40 years of HHS/CMS enforcement and Congressional actions, the Fifth Circuit panel of judges ruled that EMTALA's “federal emergency room protections do not include abortions — even if an abortion is determined to be the medical care necessary to stabilize the patient.”14 “In other words,” explained Chris Geidnet at Law Dork, “according to the Fifth Circuit, a provider does not have to stabilize the patient if the state outlaws stabilizing the patient.”15

Stephen I. Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and a nationally recognized expert on the federal courts and constitutional law, expounded upon the magnitude of the 5th Circuit’s ruling:

“Imagine a state abortion ban with no medical exception. Under the Fifth Circuit’s analysis, EMTALA arguably still would not require (or even allow) a doctor to perform an abortion that is necessary to save the life of the pregnant woman” (emphasis his).

Furthermore, in spite of the US Constitution's Supremacy Clause, the Fifth Circuit stated that EMTALA does not preempt Texas's law. But, as I explained in January, “The ruling does not only apply to the State of Texas. It also applies to all members, nationwide, belonging to the two anti-abortion medical associations who joined Texas in the suit: the American Association of Pro-Life Obstetricians & Gynecologists and the Christian Medical and Dental Associations.”

They’re so pro-life, they’ll stand there and watch you die. And the Supreme Court will not save you.

The Biden administration appealed the Fifth Circuit’s ruling, but yesterday the Supreme Court of the United States (SCOTUS) declined to take the case, issuing a "certiorari denied” without comment. This allows the Fifth Circuit’s disastrous ruling, with all its breathtakingly erroneous assertions, to remain in effect, officially killing EMTALA’s federal protections for the health and lives of pregnant patients in Texas— as well as for pregnant patients in other states who seek help at an emergency room that employs anti-abortion doctors who are members of the above named anti-abortion groups, as those member doctors are now free to deny patients abortion care in obstetric emergencies with immunity.

Every single person who goes to an emergency room has a right to emergency medical care under federal law— except the pregnant ones. They don’t count. They aren’t full citizens. They’re sub-citizens. Fetal containers. Vessels.

And “a vessel is not a person. A vessel has no rights. A vessel is only useful as long as it is functional. When it is no longer fit for purpose, it is cast aside; there are plenty more where it came from.”16

As I noted in July, following SCOTUS's decision to kick a similar EMTALA case (Moyle) back down to the lower courts, the six Republican Supreme Court justices are ready to completely end EMTALA's federal protections, nationwide, for pregnant patients experiencing catastrophic obstetric emergencies. The decision to kick Moyle back down to the lower courts “was transparently a compromise between the court’s three liberals, who wanted to preserve women’s lives, and the three more pragmatic conservatives – John Roberts, Brett Kavanaugh and Amy Coney Barrett – who wanted to preserve Donald Trump’s electoral chances. These conservatives know that a ruling saying that states can allow women to bleed out, suffer septic infections, have seizures from eclampsia, lose the function of their uterus and ultimately die – out of deference to preserving what by then are already doomed, futile pregnancies – would hurt Republican candidates in this November’s elections. That doesn’t mean they don’t want to issue such a murderous ruling; it means that they want to do so at a more politically convenient moment.”17

As I explained in July, “EMTALA's protections are essentially the walking dead. As the justices’ concurrences and dissents attached to the June 27th ruling make clear, all six justices that make up the Conservative Supermajority on the Supreme Court are prepared to nullify EMTALA’s protections for pregnant patients’ lives and health. States will be free to completely ban abortions— even those necessary to save the pregnant person’s life. But at least three Republican Supreme Court justices want to go even further: They want to force hospitals to let you die.”

In his opinion, dissenting from the decision to kick Moyle back to the lower courts, Samuel Alito (joined by Clarence Thomas and Neil Gorsuch) adopted a novel and radical position that entirely inverts EMTALA for the purposes of actually prohibiting a hospital from performing an emergency abortion to save the life of the pregnant person. Justice Kagan noted that Alito’s (and Thomas's and Gorsuch's) primary, and fictitious, claim “is that although EMTALA generally obligates hospitals to provide emergency medical care, it never demands that they offer an abortion—no matter how much that procedure is needed to prevent grave physical harm, or even death,” a radical argument that “has no basis in the [federal] statute.” The theory and goals advocated by this extremist trio of robed overlords is truly scary.

That SCOTUS has allowed the Fifth Circuit’s ruling to stand is another nail in the coffin of EMTALA.

The utter disregard for the lives of pregnant Americans evident in this case is nothing less than depraved indifference. Anti-abortion judges, states, and groups do not care if you are permanently harmed. They do not care if you die. They won’t stop until their depraved indifference is codified in law, through the courts if necessary. And as you languish in an emergency room, losing more and more blood, they’ll celebrate and pat themselves on the back for being oh so “pro-life.”

That is the “culture of life” they want— a culture wherein the cruelty is the point.

rePro-Truth

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