Ashley Ralston and Keri Taylor protest in support of abortion rights in Idaho Falls, Idaho, on August 25, 2022
Natalie Behring—Getty Images
Ideas
August 26, 2022 9:21 AM EDT
Donley is the John E. Murray faculty scholar and associate professor of law at the University of Pittsburgh Law School
Chernoby is a clinical instructor of emergency medicine at George Washington University and reproductive health care attorney
Perryman is an attorney and the president and CEO of Democracy Forward

For more than 35 years, people in the United States experiencing medical emergencies have been entitled to receive stabilizing treatment in most hospitals. Sometimes that emergency care is an abortion because medical emergencies can arise in pregnancy for which abortion is the only treatment that can help. But that federal protection is now being tested following the Supreme Court’s decision in Dobbs.

Over the past two months, the country has moved from a place where abortion was constitutionally protected to one in which state officials are seeking to prevent their pregnant citizens from accessing federally protected and medically necessary emergency care. Their attempts to enforce abortion bans in emergency situations and undermine bedrock principles of emergency medicine are out of step not only with the views of the majority of the American people but also with the expertise of the nation’s medical, health, and hospital communities. The Biden Administration has been in court working to protect pregnant patients from state laws that deprive them of this protection – and its position is on solid legal ground.

The Emergency Medical Treatment and Labor Act (EMTALA), passed in 1986 by a bipartisan majority in Congress and signed by a Republican President, requires that all hospitals with emergency rooms that accept Medicare funds provide emergency services to patients who present with emergency medical conditions, including active labor, regardless of their ability to pay. The medical community has made clear that there are certain emergent conditions that require a pregnancy be terminated or fetal tissue to be expelled to protect the life and health of the person carrying the pregnancy. These instances typically arise where a fetus cannot survive regardless of medical interventions. Despite this, a range of state efforts would criminalize doctors who provide abortion even in such emergency circumstances, leaving physicians and their patients in an untenable and unsafe position.

The United States Constitution’s Supremacy Clause, and settled case law interpreting it, provides that federal law is the “supreme law of the land” and trumps state law when the two conflict. Accordingly, in the weeks following the Dobbs decision, the U.S. Department of Health and Human Services (HHS) issued a guidance statement reminding hospitals and their medical providers that when abortion is necessary to stabilize a patient’s medical emergency, EMTALA requires that it be offered. Of note, this guidance did not create a new policy or new obligations, merely reiterated obligations already required under the law.

Read More: The Devastating Implications of Overturning Roe Will Go Far Beyond Abortion Patients

The guidance was immediately attacked by Texas Attorney General Ken Paxton and two interest groups, who filed suit in federal court in Texas to invalidate the guidance. Shortly thereafter, in a separate lawsuit, the Biden Administration challenged Idaho’s abortion ban in federal court, arguing that its lack of a health exception unlawfully conflicts with federal protections under EMTALA. The lawsuit argued that the law in Idaho would criminalize doctors for providing abortion in emergency circumstances and force them to choose between complying with state or federal law – a choice where the consequences could involve prison time. (For transparency, we note that one of us, Skye Perryman, leads an organization that represented a coalition of medical and health organizations in filing amicus briefs in support of the government’s position in the Idaho and Texas cases.)

This week, a federal court in Idaho agreed , enjoining Idaho’s abortion law to the extent it conflicts with EMTALA. Deferring to the medical community, the court concluded that “Idaho’s criminal abortion law will undoubtedly deter physicians from providing abortions in some emergency situations,” subjecting “women in medical crisis to periods of serious physical and emotional trauma as they wait to get nearer and nearer to death.” As the Court put it, “Dobbs did not overrule the Supremacy Clause. Thus, even when it comes to regulating abortion, state law must yield to conflicting federal law.”

But a day before the Idaho decision, a federal court in Texas endorsed Paxton’s attack, preliminarily enjoining the Biden Administration’s guidance interpreting EMTALA in Texas. This court reasoned that the statute protects both pregnant people and their fetuses. It failed to address the fact that, in many medical emergencies, pregnant women are faced with the situation where their wanted pregnancy is nonviable. This equivalence between the value of a nonviable fetus and a woman’s life is quite troubling.

Read More: An Alabama Clinic Reinvents Itself for a Post-Roe World

These cases will presumably be appealed to the Ninth and Fifth Circuits, potentially setting up the first post-Dobbs circuit decisions related to abortion, which will concern the limits of state power. There could end up being intense pressure on the Supreme Court to weigh in. Though the Supreme Court in Dobbs purported to “return the issue of abortion to the people’s elected representatives,” it did not allow states to ignore their obligations under federal law. And as many legal scholars predicted, the federal courts will be dealing with the chaos Dobbs caused for years to come.

Emboldened by the new post-Dobbs reality, elected leaders are showing their true stripes. Almost overnight, exceptions to abortion bans that most Americans believed were settled are under attack. Indeed, most state bans now lack rape and incest exceptions. Not only are health exceptions being stripped too, but states are even considering laws without exceptions for the life of the pregnant person. All of this is occurring while the United States is in the midst of a maternal-mortality crisis: we have the highest rate of maternal mortality in the industrialized world. Women are twice as likely to die from childbirth in the United States as in countries such as the United Kingdom. The crisis disproportionately affects women of color and Black women in particular, who are three times more likely to die from pregnancy-related causes than their white counterparts. Clearly, this movement seeking to deny pregnant women of emergency care is not about life.

To mitigate the carnage of state abortion bans, courts must affirm that longstanding federal law requires all states to permit medically necessary abortions in emergency situations. At the same time, citizens also have a role in holding their elected leaders accountable. The state attorneys general defending these laws and the legislatures and governors who enact them are all elected. Those who not only seek to ban medically necessary abortions but also fight in court to deprive their own citizens of federal protections that save pregnant patients’ lives should be held to account.

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