Federal Bureaucratic Experts Explain how federal law trumps antiabortion one in Idaho
The Emergency Medical Treatment and Labor Act protects abortions in emergencies. What happens when it conflicts with state law?
A group of officials who had worked at the Department of Health & Human Services filed an amicus brief in a case that will determine whether an antiabortion Idaho law will take precedence over a federal law that ensures universal standards of care within emergency rooms.
In certain situations, like an ectopic pregnancy, abortions are a necessary procedure to preserve and maintain the mother’s health. Some who have faced complications but who haven’t been adequately cared for by obstetricians may show up in emergency settings to get what they need. The Emergency Medical Treatment and Labor Act, EMTALA for short, stipulates that emergency staff must provide all required care, including abortions.
The Biden Administration challenged an Idaho law known as the Defense of Life Act, which prohibits abortions unless they save the mother’s life. The feds say EMTALA preempted that. The case is known as Moyle v. United States.
I spoke with several of the amici listed on the brief. Two worked at HHS, and another for the Centers for Medicare & Medicaid Service (CMS).
Marilyn Dahl was the director of the acute care division at CMS until her retirement nine years ago. She explained how EMTALA works. It’s complaint-driven, and it will depend on the individual circumstances reported. Once they conducted an investigation, they sent a report to the hospital administration, which had the opportunity to address the problem. If they didn’t, the provider agreement with CMS would be terminated.
Dahl explained how denying an abortion in emergencies played out from a regulatory standpoint.
“That would be a clear violation if they transferred a patient or the patient left on their own because they felt they weren't getting treated, and went someplace else,” Dahl said. “And in cases like that, often, the second hospital would be one that would file a complaint about the first.”
This is problematic if multiple hospitals deny abortion care upon the belief that they’re violating state law. That means a woman could be turned away from numerous facilities, which could happen in Idaho.
Dahl said the Supreme Court ruling against the Biden Administration could have dire consequences, primarily by not ensuring a universal standard of care.
“I think it also puts practitioners in a very difficult position of trying to figure out how to reconcile their medical training with whatever may be prevailing local standards,” Dahl said.
Later, I spoke with Robin Schneider and Mary Ellen Palowitch on the phone. Both worked at HHS. They delineated between elective abortions, which are performed because the patient desires one regardless of medical condition, and therapeutic abortions, which are performed out of medical necessity.
Schneider said historically, there has never been any alteration of EMTALA based on which party controls the presidency.
“Given that all of this until very recently was in the Roe v. Wade world, there were certain assumptions, in any case, that that wasn't really going to be an issue,” Schneider said. “Emergency medical conditions would be treated and stabilized, whatever they were.”
Pawlowitch explained that patient dumping occurs when one hospital denies care and refers or transfers patients to other hospitals for unacceptable regulatory reasons. Among those reasons can be the desire not to provide care because it’s inconvenient or because the patient doesn’t have insurance. Not wanting to violate the law could become another one, at least in Idaho.
Pawlowitch sees a world where women would be in greater peril should the Supreme Court strike down EMTALA.
“It would just be very, very significant damage,” she said. “It would no longer protect women in emergency situations. It wouldn’t protect women coming in or anybody coming in with any kind of pregnancy complication.”