Professor speaks about federal lawsuit over emergency room protections of abortion care
The law was designed to prevent patient dumping from happening
While we await the Supreme Court’s opinion in two landmark abortion cases, it will be helpful to look at the historical origins of at least one of them that deals with whether abortions are protected treatment within emergency rooms.
Moyle v. United States centers on whether an anti-abortion ban in Idaho trumps the Emergency Medical Treatment and Labor Act, which the Biden Administration contends protects abortion access in the settings mentioned above.
Sara Rosenbaum, JD, a George Washington University professor at the Department of Health Policy at the Milken Institute School of Public Health, spoke with me about the law’s inception, which she had been involved in.
“Physicians are completely paralyzed by what the states are doing,” Rosenbaum said.
Rosenbaum said two primary concerns motivated lawmakers to enact EMTALA. First, they wanted to address patient dumping, where hospitals send people who need medical care to other facilities instead of providing it themselves. Second, Congress wanted to ensure that people weren’t discharged prematurely because they were concerned about whether they could pay their bills.
Now, doctors fear losing their medical licenses and go to prison if they provide abortions, even if the medical indications exist.
During the Supreme Court hearing, Rosenbaum noticed that the four women justices generally had a skeptical tone.
Justice Amy Coney Barrett speculated on whether different doctors could reach different conclusions. She asked the hypothetical of whether one doctor could be prosecuted if another disagreed with his or her assessment of whether a life-saving abortion was merited.
Chief Justice Roberts asked what the process was when a doctor performed an abortion–focusing on whether there was a review process by a medical board.
The conservative male justices had been a little more supportive of the state of Idaho's arguments. Upon Justice Clarence Thomas’ questioning, Solicitor General Elizabeth Prelogar responded that Idaho law prevents hospitals from complying with federal requirements arising from accepting funds through Medicaid and HHS.
“It could be a five, four decision in favor of women,” Rosenbaum said. “It could be a five, four decision in favor of, ‘We don't care about them. And we're gonna we're gonna decide this as a sort of an abstract matter of state autonomy.’”
Justice Samuel Alito asked a series of questions during the hearing that implied EMTALA’s wording protected the life of an unborn child. That brings into question whether fetal personhood was established by it.
Rosenbaum said that the language crafted and amended in EMTALA dealt with labor and delivery.
“It was all in the context of labor when there was no question that a live baby was coming, people thought,” Rosenbaum said.