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ER Docs in Abortion Bind as Feds Say US Law Tops States (1)

July 13, 2022, 3:49 PMUpdated: July 13, 2022, 9:15 PM

Confusion among emergency room doctors remains even after the Biden administration clarified this week that federal law allowing abortions in life-or-death situations supersedes any restrictions a state may have on the procedure.

Across the country, the Supreme Court ruling in Dobbs v. Jackson, which ended a woman’s constitutional right to abortion, has rattled physicians who must decide when abortions should be performed under the Emergency Medical Treatment and Labor Act.

The law requires doctors to stabilize or treat pregnant patients who experience a miscarriage or other medical emergency—even if state law prohibits the treatment. The Biden administration July 11 issued clarifying guidance on the responsibility to provide care under EMTALA. On Tuesday, the Centers for Medicare & Medicaid Services hosted a webinar to help answer questions about treating women with problem pregnancies under the law.

“If the only way to do that is to manage her miscarriage, or even give her an abortion, then federal law preempts any contrary state ban on abortion. That to me is crystal clear,” said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University.

Degree of Tension

All states allow doctors to terminate a pregnancy if the mother’s life is at risk, but questions remain about what constitutes a life-or-death situation.

“To this point I don’t know that there has been this degree of tension between what is required of us by the federal law and what potentially could be considered illegal in a state,” said Diana Nordlund, an attorney and emergency room physician in Grand Rapids, Mich.

Those concerns were echoed in a statement from Laura Wooster, senior vice president for advocacy and practice affairs at the American College of Emergency Physicians.

“While this HHS guidance is a welcome step, a significant amount of uncertainty remains for emergency physicians, particularly around the extent to which EMTALA protects emergency physicians’ duty to deliver lifesaving care to their patients,” Wooster said.

ACEP is creating a “multidisciplinary team of medical experts to examine the wide range of clinical and legal implications that the Dobbs decision and any supporting guidance could have on emergency medicine, patient care and safety,” she added.

Sandra DiVarco, a partner at McDermott Will & Emery in Chicago, said she expects formal EMTALA complaints about inadequate care to increase because of the Dobbs decision. DiVarco, who represents hospitals and health systems, also expressed concern that emergency care for pregnant patients could suffer in states with very restrictive abortion laws.

“There’s a concern there could be a risk that there might be a delay in determining what to do next,” said DiVarco, who’s also a registered nurse.

Gostin agreed. “It’s possible emergency room physicians, uncertain of what their legal and ethical obligations are, will either refuse to do an abortion or delay. And so it will chill safe and effective medical care to preserve the health or save the life of the woman,” he said.

“There will be tens of thousands of women who will have irreversible health consequences or die as a direct result of state restrictions on abortion,” Gostin added.

Real-Time Information Needed

To avoid that scenario, the new ACEP committee will try to supply their doctors and other providers with information in real time on the rapidly changing state laws where they practice, Nordlund said.

“Certainly, we don’t want to see patients not receiving the care that is necessary for them because of concern about potential legal ramifications,” said Nordlund, who’s also an ACEP fellow.

“Because physicians already practice under the specter of medical malpractice action, so to then also be faced with potential criminal liability, even if it’s only theoretical at least in some states, is still daunting to a lot of physicians. So we really are seeking to provide clarity so that it is as clear and as efficient at the bedside as possible and folks get the care they need,” she said.

State medical societies are equally concerned. In Kentucky, a state court temporarily blocked one of the nation’s toughest anti-abortion laws. Kentucky’s “trigger law” makes it a Class D felony to perform abortions except when a “pregnant person’s life is in danger” or a provider performs a “medical treatment that accidentally terminates a pregnancy,” according to the Guttmacher Institute.

The statute and Supreme Court decision raise “a number of legal questions for Kentucky physicians,” said a statement from the Kentucky Medical Association. The group is “working with legal experts to analyze the various implications involved and the Association will be providing its members with further information to assist with navigating this new legal landscape.”

(Expands DiVarco's comments in the 10th paragraph. A previous version corrected the name of the law in the second paragraph.)

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergindustry.com; Alexis Kramer at akramer@bloomberglaw.com