Eyes on EMTALA in abortion fights

A less-recognized 36-year-old federal law requiring hospitals funded by Medicare to provide all patients with appropriate emergency care is at the center of abortion fights in two states. 

The Emergency Medical Treatment and Labor Act was enacted in 1986 by Congress to require that Medicare hospitals provide all patients appropriate emergency care — including medical screening, examination, stabilizing treatment and transfer, if necessary — irrespective of any state laws or mandates that apply to specific procedures. 

If a hospital is in a state that prohibits abortion by law and does not make exceptions for the health or life of a pregnant person, EMTALA preempts that state law, HHS directed hospitals in July. 

Idaho's abortion law, schedueld to take effect Aug. 25, will criminalize the performance of most abortions except for limited scenarios, including those where abortion is necessary to prevent the death of a pregnant woman. 

The U.S. Justice Department filed a lawsuit Aug. 2 to block Idaho's law, alleging it violates EMTALA. The government says EMTALA's definition of emergency medical care is broader than treatment to avoid death — it also covers treatment for conditions that place a patient's health in serious jeopardy or risk impairment to bodily functions or any body organ. 

The American Hospital Association and Association of American Medical Colleges filed an amicus brief Aug. 15 in support of the Justice Department's motion for preliminary injunction for the Idaho law. 

"Hospitals and emergency room physicians need clarity about the legal regimes that govern the provision of care. They need to know what treatments they may — and, in the context of EMTALA, must — provide," the associations wrote in their brief. "The conflicting federal and Idaho frameworks, however, generate exactly the kind of uncertainty that is antithetical to the practice of sound emergency medicine."

In Texas, Attorney General Ken Paxton sued HHS in July, alleging that the guidance that EMTALA covers abortions is unlawful and requesting a temporary restraining order against the rule. 

"By this move, the Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic," the attorney general said in a statement

The Justice Department filed a motion to dismiss the Texas attorney general's lawsuit Aug. 15 in federal court in Lubbock, Texas. 

"Far from being an 'abortion mandate,' the guidance is entirely consistent with — and, in fact, flows directly from — EMTALA's text, and does not conflict with other law," the agency said in its filing. A group of 20 Democratic-led states submitted an amicus curiae brief Aug. 16 in support of the Justice Department's motion. 

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