Gavel to Gavel: SCOTUS to Consider Abortion Access in Emergencies

The U.S. Supreme Court has agreed to determine whether the Emergency Medical Treatment and Labor Act (EMTALA) overrides state abortion bans when a pregnant woman presents to an emergency department. Federal courts had reached conflicting decisions. The Biden administration takes the position that EMTALA’s requirements override conflicting state law.

Both Texas and Idaho have laws preventing abortion unless the life of the mother is at risk. The Fifth Circuit Court of Appeals ruled that EMTALA “protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict,” and ruled that Texas’ law was not preempted. An Idaho District Court ruled otherwise, indicating that a pregnant woman was entitled to EMTALA’s requirement for “necessary stabilizing treatment” in an emergency, including “abortion when that is the necessary treatment,” and holding that the Idaho law was preempted.

The U.S. Supreme Court agreed to hear an appeal of the Idaho decision, taking the unusual position of bypassing a review by the federal appeals court. Further, the court ruled that the law could take effect until its decision (anticipated in late June), overruling the District Court judge’s order that EMTALA preempted state law.

In 2023, the Oklahoma Supreme Court ruled unconstitutional two civil laws that were designed to permit private citizens to enforce abortion bans. The two laws had exceptions for cases involving a “medical emergency,” but the court ruled the exceptions were too narrow. It ruled that a woman has a constitutional right to end a pregnancy to save her life, without the need for a medical emergency. A similar criminal law had previously been struck down by the Oklahoma Supreme Court because it, too, relied on an exception for a “medical emergency.” However, a 1910 criminal statute continues to prohibit most abortions in Oklahoma unless they are necessary to save the life of the mother, as it does not contain the language regarding a “medical emergency” that the court found to be problematic.

The key issues are (i) at what point an abortion is permitted to “save the life of the mother”, and (ii) whether an abortion also is permitted to prevent serious impairment to the patient’s health. A July 11, 2022, memorandum issued by CMS stated that “the EMTALA statute requires that stabilizing treatment prevent material deterioration and compels hospitals and physicians to act prior to the patient’s condition declining.” It goes on to state, by way of example, that “If qualified medical personnel determine that the patient’s condition, such as an ectopic pregnancy, requires stabilizing treatment to prevent serious jeopardy to the patient’s health (including a serious impairment or dysfunction of bodily functions or any bodily organ or a threat to life), the qualified medical personnel is required by EMTALA to provide the treatment.”

Additional guidance on this important issue is crucial for physicians and other health professionals and facilities dealing with this issue on a daily basis. We will follow the Supreme Court case and provide additional clarification as it becomes available.

This article first appeared in The Journal Record on January 10, 2024, and is reproduced with permission from the publisher.


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