EMTALA Emergency Abortion Care Litigation: Overview and Initial Observations (Part I of II)

Legal Sidebari

EMTALA Emergency Abortion Care
Litigation: Overview and Initial Observations
(Part I of II)
November 1, 2022
After the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overruled Roe
v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey in holding that the U.S.
Constitution does not confer a right to an abortion, restrictions on abortion access went into effect or were
enacted in many states. These restrictions vary in degree from state to state. As part of the Biden
Administration’s response to these state restrictions, the Department of Health and Human Services
(HHS) issued a July 2022 guidance document (HHS Guidance) regarding the enforcement of the
Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA is a federal law that applies
to every hospital that has an emergency department and participates in Medicare. The HHS Guidance
states that under EMTALA’s requirements, if a physician believes that a pregnant patient presenting at an
emergency department is experiencing an emergency medical condition, and that abortion is the
stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. The
HHS Guidance further provides that EMTALA preempts—or displaces—state abortion restrictions to the
extent they conflict with EMTALA.
The State of Texas sued to block enforcement of the Guidance while HHS sued the State of Idaho to block
enforcement of Idaho’s abortion ban to the extent it conflicts with EMTALA. In late August 2022, the
district court in each case granted the respective plaintiffs’ motion for preliminary injunction, temporarily
suspending the HHS Guidance in Texas and portions of applicable state law in Idaho.
This two-part Legal Sidebar series provides an overview of the litigation and some initial observations.
Part I takes a closer look at the relevant federal and state laws and the HHS Guidance. Part II summarizes
the district court orders and makes some initial observations regarding those decisions and the parties’
litigating positions.
Background
The preemption doctrine, grounded in the Constitution’s Supremacy Clause, provides that federal law
supersedes conflicting state laws. Federal law can preempt state law either expressly (i.e., through a
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statutory provision that explicitly specifies the scope of state laws that are displaced) or impliedly,
including when it is “impossible for a private party to comply with both state and federal requirements,”
or if implementation of state law “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”
EMTALA
EMTALA generally requires Medicare-participating hospitals with emergency departments to (1) provide
an appropriate medical screening examination to an individual requesting examination or treatment to
determine whether an emergency medical condition exists; and (2) if such a condition exists, to provide
necessary treatment to stabilize the individual before any transfer can take place. EMTALA defines an
“emergency medical condition,” in relevant part, as
a medical condition manifesting itself by acute symptoms of sufficient severity (including severe
pain) such that the absence of immediate medical attention could reasonably be expected to result
in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the
woman or her unborn child) in serious jeopardy, or (ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part.
Participating hospitals and their physicians responsible for examining, treating, or transferring patients
that negligently violate EMTALA’s requirements are subject to civil monetary penalties. Responsible
physicians that engage in repeated or gross violations may also be excluded from participation in federal
health care programs. EMTALA includes an express preemption provision (42 U.S.C. § 1395dd(f)) that
states: “The provisions of this section do not preempt any State or local law requirement, except to the
extent that the requirement directly conflicts with a requirement of this section.”
Relevant State Laws
The Texas state legislature enacted the Human Life Protection Act in 2021. The law, similar to other state
“trigger laws” that were set to go into effect in the event the Supreme Court overturned Roe, took effect
on August 25, 2022. It generally makes performance of abortion a felony unless a licensed physician, in
the exercise of reasonable medical judgment, determines (1) that the pregnant female “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; and
(2) the treatment that “provides the best opportunity for the unborn child to survive . . . would create a
greater risk of the pregnant female’s death or a serious risk of substantial impairment of a major bodily
function of the pregnant female.” The law generally defines abortion to mean the use of any means “with
the intent to cause the death of an unborn child of a woman known to be pregnant.” The term, however,
specifically excludes from the definition certain circumstances, including the use of contraceptives and
acts to “remove an ectopic pregnancy.”
In Idaho, the state legislature, in 2020, similarly passed a trigger law that took effect on August 25, 2022.
Idaho Code § 18-622 generally makes performance of an abortion a felony, subject to two affirmative
defenses that physicians may invoke upon prosecution. First, an accused physician may avoid conviction
by proving, by a preponderance of evidence, that the abortion, in the physician’s good faith medical
judgment (1) “was necessary to prevent the death of the pregnant woman” and (2) was performed in a
manner that “provided the best opportunity for the unborn child to survive, unless, in his good faith
medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the
death of the pregnant woman.” Second, an accused physician may assert an affirmative defense based on
a reported case of rape or incest. An abortion is generally defined as the use of any means to intentionally
terminate a “clinically diagnosable pregnancy.” While the use of certain contraceptives is excluded from
the definition of abortion, there is no express exclusion related to ectopic pregnancy.

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HHS’s EMTALA Guidance
The July 2022 HHS Guidance reiterates that hospitals must provide appropriate medical screening
examinations to those who come to their emergency departments and request examination or treatment. In
cases where the examining physician determines that an emergency medical condition exists, the hospital
must also provide necessary stabilizing treatment, irrespective of any conflicting state laws. The HHS
Guidance states that under these requirements, if a physician believes that a pregnant patient presenting at
an emergency department is experiencing a condition that is likely or certain to become emergent, and
that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide
that treatment. Examples of relevant conditions may include “ectopic pregnancy, complications of
pregnancy loss, or emergency hypertensive disorders, such as preeclampsia with severe features.”
The HHS Guidance further provides that a state-level abortion restriction that “does not include an
exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA’s
emergency condition definition”—is preempted by EMTALA. As to enforcement, the Guidance notes that
HHS may, among other enforcement tools, impose a civil monetary penalty on a hospital or physician
pursuant to 42 C.F.R. § 1003.500 for refusing to provide necessary stabilizing care or an appropriate
transfer of that individual if the hospital does not have the capacity to stabilize the emergency condition.
The Guidance further notes that EMTALA’s whistleblower provision (42 U.S.C. § 1395dd(i)) prevents
retaliation by a hospital against any employee who refuses to transfer a patient with an emergency
medical condition, “such as a patient with an emergent ectopic pregnancy, or a patient with an incomplete
medical abortion.”
Following the Guidance’s issuance, litigation ensued in Texas and Idaho. For discussion of the litigation,
see Part II of the Sidebar.

Author Information

Wen W. Shen

Legislative Attorney




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