The coming state-federal showdown over abortion

Editor’s Note: Mary Ziegler is the author of “Abortion and the Law in America: Roe v. Wade to the Present” and the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” Elizabeth Sepper is a professor of law at the University of Texas at Austin and an expert in health law, religion and equality. The views expressed in this commentary are their own. View more opinion on CNN.

CNN  — 

A woman turned away with an ectopic pregnancy. A miscarrying mother sent home, where she develops an infection. People with severe pregnancy complications left untreated. Within a month of the Supreme Court’s decision overturning Roe v. Wade, abortion bans have thrown emergency care into disarray and put doctors in an impossible bind.

Mary Zeigler

Elizabeth Sepper

Federal law requires physicians to treat pregnant patients in emergencies, providing abortions when necessary, while the law in some states prohibits emergency abortions. A showdown between the federal government and the states is now brewing. The state of Texas is suing the Biden administration to block federal guidance that protects access to emergency abortion care, even in states where abortion is a crime. And on Tuesday, the administration went on the offensive, suing Idaho over its abortion restrictions.

At the heart of both lawsuits is a nearly 40-year-old federal statute, the Emergency Medical Treatment and Labor Act, known as EMTALA. The law assures that everyone who shows up at the emergency room gets checked out. And if the hospital finds the patient has an “emergency medical condition,” it has to stabilize them – meaning the patient’s condition won’t worsen when they’re discharged. That includes laboring patients, for whom EMTALA guarantees protection.

After the Supreme Court overturned Roe in Dobbs v. Jackson’s Women’s Health Organization, the federal government reminded hospitals that emergency care of pregnant people sometimes requires abortion. Stabilizing treatment may call for dilation and curettage (D&C), a common abortion procedure, or methotrexate, a drug used for conditions like pain and inflammation that’s also commonly used to end ectopic pregnancy and miscarriage.

Doctors could rest easy, the US government said, knowing federal law would protect their clinical judgment: “When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person – or draws the exception more narrowly than EMTALA’s emergency medical condition definition – that state law is preempted.”

But the Texas attorney general has asked a federal court to declare this guidance unlawful. Under the US Constitution, federal law is supreme over conflicting state laws. But here, the state argues, EMTALA doesn’t require any specific kind of care, so there is no conflict. Abortion, it says, is left to state law.

Texas’s ban, set to go in effect at the end of August, prohibits all abortions unless a woman “‘has a life-threatening physical condition’ arising from a pregnancy that places her ‘at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed.’” That means in some emergency situations, there won’t be a conflict between the federal statute and near-total abortion bans. For example, it may be “reasonably clear” that a pregnant woman critically ill with heart failure has the sort of life-threatening condition that permits abortion under Texas law. Where a woman is at “death’s door,” then Texas’s life exception would apply.

But Texas law prohibits abortion in any emergency that falls short of a life-threatening condition that seriously risks a major bodily function. This means that women miscarrying before fetal viability have to be turned away, unless and until their lives are immediately in danger. Patients with preterm premature rupture of membranes have been denied pregnancy termination, and been injured as a result. Hospitals will be stuck between the federal mandate to treat and the vagueness of state law that threatens criminal charges for abortion care. The Texas ban permits doctors to intervene in a narrow range of emergencies, but its language is unclear. When is a risk “serious”? Which bodily functions are “major”?

In some cases, the federal mandate and the state ban will collide head-on. EMTALA tells doctors to act to avoid “serious jeopardy” to a pregnant person’s health, or potentially face administrative fines or exclusion from Medicare. Texas law warns that doctors might go to prison if they go beyond the narrow exceptions of the criminal ban.

These are not hypotheticals. Some pregnant people develop kidney inflammation or heart enlargement, serious health risks that may not rise to the level of death or substantial impairment of a “major bodily function.” Hospitals frequently see patients experiencing premature rupture of membranes or miscarriage. While EMTALA could require that doctors offer to terminate those pregnancies, even if fetal cardiac activity can still be detected, Texas law would demand that doctors wait until the pregnant patient risks death or loss of major bodily function.

The conflict between Texas and the Biden administration over emergency care may be just the tip of the iceberg because anti-abortion leaders increasingly argue that there is no such thing as a medically necessary abortion. There had always been some suspicion of health-based exceptions: The more broadly a law protected patient health, the more anti-abortion leaders worried that exceptions would allow people to have abortions for any reason. That’s why exceptions from abortion restrictions for health, once commonplace, are not found in many recent bills.

And consensus about life-saving exceptions has also collapsed within the anti-abortion movement. In the 1990s, anti-abortion groups developed a deep distrust of leading medical organizations after fighting for statutes warning that abortion increased the risk of breast cancer, infertility and post-traumatic stress disorder. When peer-review research debunked those arguments and mainstream medical groups rejected them, anti-abortion leaders responded that these organizations were simply biased.

Battles over global public health led to anti-abortion hostility toward life-saving exceptions. The United Nations Millennium Development Goals, set in 2000, prioritized the reduction of maternal mortality. Seven years later, the World Health Organization established that at least 13% of maternal deaths worldwide were attributable to unsafe abortion, and supporters of reproductive justice argued that access to safe abortion was a crucial step in saving the lives of pregnant people.

Anti-abortion groups responded by arguing that expanding abortion access would do nothing to improve maternal mortality. In 2009, the American Association of Pro-Life Obstetricians and Gynecologists began to argue that there was no such thing as a life-saving abortion. Three years later, anti-abortion clinicians issued the Dublin Declaration on Maternal Health, which proclaimed that “direct abortion – the purposeful destruction of the unborn child – is not medically necessary to save the life of a woman.”

The Dublin Declaration spread rapidly in conservative Catholic and evangelical circles in the United States, and anti-abortion groups from Students for Life to Feminists for Life claimed that emergency exceptions were unnecessary. A growing number of politicians followed suit, with Republican platforms and politicians now opposing any exception for abortion whatsoever.

While leading anti-abortion organizations increasingly reject life-saving exceptions, EMTALA has remained essentially the same for four decades. Congress moved to pass the act following reports throughout the 1980s that uninsured patients, many of them people of color, were being denied care and dumped onto other hospitals. A patient with a knife in his back was asked to pay $1,000 before anyone would help him. Women in labor were left to sit in waiting rooms for hours and then sent miles away. Transferred patients, many of whom were in unstable condition, were twice as likely to die as those treated at the transferring hospital.

EMTALA creates a guarantee of emergency care, especially for patients in labor. The Biden administration reminded hospitals of these obligations and hoped to reassure emergency doctors that they could do what is best for patients.

Contrary to Texas’s claims, federal government is not using EMTALA to turn every hospital into an abortion clinic. But the federal law does require abortion in some emergency situations where the Texas law would label it a crime. And because of the shift in the anti-abortion movement’s approach to exceptions, the stage is set for a showdown between the federal government and the states. At stake is the idea that abortion can be medically necessary health care.

And if federal law doesn’t prevail, emergency physicians will continue to face the impossible task of navigating between the complexities of medicine and the vagaries of law. They will serve as de facto lawyers. And pregnant patients will pay the ultimate price.

Leave a Reply

Your email address will not be published.