Many doctors hoped that last week’s Supreme Court decision regarding emergency care of pregnant women would provide the clarity they need to do their jobs.
It did not.
Shortly after the Court announced its decision, Ruth Marcus, a political commentator, texted this message: “Don’t be confused by the Idaho abortion case. This isn’t a win for pregnant women. It’s likely a temporary reprieve, and just for some.”
For now, pregnant Idaho women won’t need to be airlifted out of state for appropriate treatment if they come to an ER with a life-threatening complication of pregnancy such as severe bleeding, impending kidney failure, or an ectopic pregnancy.
But instead of issuing a definitive ruling, the Supreme Court returned the matter to lower courts. It also lifted its stay of a lower-court ruling that will allow, for now, emergency abortions at Idaho hospitals to be done if neccessary to protect the health of the mother.
Justice Ketanji Brown Jackson strongly objected to the Court's handling of the case, and read parts of her dissenting opinion from the bench: “Today’s decision is not a victory for pregnant patients in Idaho. It is a delay,” she wrote. “While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”
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Conflicting Laws
In states with near-total bans on abortion, ER doctors and OB-GYN specialists who treat women with pregnancy-related complications are caught between what their training and professional ethics require and their fear that taking appropriate action will expose them to criminal prosecution.
In a previous commentary, I noted that the Emergency Medical Treatment and Labor Act (also known as EMTALA) “entitles patients who seek treatment for emergency conditions to receive stabilizing care, regardless of their ability to pay.” Hospitals that fail to comply with EMTALA risk losing Medicare funds. Nearly four decades later, EMTALA still protects ER patients from being denied needed care.
When the Supreme Court overturned Roe v. Wade two years ago, several states quickly imposed near-total bans on abortion. For example, Idaho’s ban only allows emergency abortion to prevent a pregnant woman’s death. It makes no exceptions for abortion to prevent grave harm to the woman’s health, such as loss of fertility.
Citing EMTALA, the Biden Administration sued Idaho for failing to protect women seeking emergency care due to severe complications of pregnancy.
In a column, Ruth Marcus explained what happened next. “A district court preliminarily agreed with the Biden administration and said EMTALA preempts state law in the narrow circ*mstances of severe threats to maternal health. An all-Trump-appointee panel of the U.S. Court of Appeals for the 9th Circuit disagreed; [then] the full appeals court sided with the district court. So Idaho — before the case was fully litigated — trooped to the Supreme Court.”
Doctors Weigh In
Dismayed, several of our nation’s leading medical and public health organizations, including the American Medical Association, the American College of Obstetricians and Gynecologists, the American College of Emergency Physicians and the Society for Maternal-Fetal Medicine, filed a powerful amicus brief that asserted EMTALA is vital to protect the health and lives of pregnant women:
“The Idaho Law prevents medical professionals from providing emergency medical care, as that concept has been defined and practiced for decades. It eliminates the very core of emergency medicine—prompt provision of stabilizing and often life-saving treatment—and replaces it with an unconscionable wait-and-see approach that will prove deadly for many patients.”
Unfortunately, the doctors’ brief did not convince the Supreme Court to issue a definitive decision.
Shortly following the Court’s announcement that it was returning the matter to lower courts, the American College of Emergency Physicians issued a press release entitled, “Emergency Physicians Must Be Able to Treat Pregnant Patients Without Fear of Criminalization.”
What Comes Next
The Supreme Court will not revisit the matter until after the upcoming presidential election. At that point, it may reconsider Idaho’s case or take up a related one from Texas. Alternatively, if Donald Trump retakes the White House, he could direct the Justice Department to drop both cases. In either event, it is unlikely that matters will stop there.
Texas and Idaho embrace the notion that abortion does not fall under EMTALA’s protections because it is not explicitly mentioned in the statute. Last January, the U.S. 5th Circuit Court of Appeals—widely considered the most conservative in the nation—agreed, noting that EMTALA “does not mandate any specific type of medical treatment, let alone abortion.”
If the Supreme Court endorses the 5th Circuit’s reasoning, other ER treatments could come under legal challenge, such as administering antibiotics to an infected I.V. drug user, providing oxygen to an immigrant child with severe asthma or performing emergency dialysis on an uninsured patient in acute kidney failure.
Instead of mandating specific treatments, EMTALA requires that every patient who comes to an ER receive a screening exam to determine if an emergency exists, and if so, that doctors promptly act, using their best professional judgment, to stabilize the patient’s condition. That standard has worked well for nearly 40 years.
The stakes were high when the Supreme Court agreed to hear United States v. Idaho. They are even higher today.
Dr. Kellermann is a member of the American College of Emergency Physicians. His opinions are his own.
