The federal guideline on life-saving abortions puts doctors in a dilemma

  • Experts say emergency treatment guidelines are not clearly enforced
  • New state abortion bans are prompting providers to reconsider treatment

(Reuters) – The Biden administration‘s policy requiring hospitals to perform abortions in medical emergencies despite government bans may be difficult to enforce, legal experts say, but it raises difficult questions for healthcare providers.

There is no clear precedent for resolving conflicts between federal emergency treatment requirements and state criminal laws that restrict abortion, say public health advocates, who force emergency physicians in conservative states to make treatment decisions amid a rapidly evolving landscape of potentially conflicting laws to meet in a split second.

Mary Ellen Palowitch, a former nurse who works as a non-legal consultant to hospitals on compliance issues for the Dentons law firm, said emergency physicians are now in a bind.

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“It’s not a place where you want to call lawyers and get permission to do a certain procedure,” she said.

The US Department of Health and Human Services said last week that emergency medical facilities must perform an abortion if it is necessary to save a mother’s life or health, even if it would violate state law.

The policy replaces state statutes, many of which were amended after the quashing of Roe v. Wade’s 1973 U.S. Supreme Court guaranteeing abortion rights nationwide went into effect last month, violating a federal law known as the Emergency Medical Treatment and Active Labor Act (EMTALA).

EMTALA applies to hospitals participating in the state Medicare insurance program, which includes almost all hospitals. It requires hospitals to “stabilize” anyone who presents to an emergency room with a “medical emergency,” defined as a condition that “seriously threatens” the patient’s health. If the hospital cannot stabilize the condition, it must transfer the patient to another facility that can.

That threshold for caregiving is likely at odds with the exceptions that most state abortion bans include when the mother’s life is in danger, according to Sara Rosenbaum, a professor of health law at George Washington University.

State laws, she said, could be interpreted to only allow abortions when the mother’s life is in imminent danger, while EMTALA could require earlier intervention in some cases.

For example, a woman who is having a miscarriage with profuse bleeding may need a doctor to perform surgical dilation and curettage, which is the same procedure used for some abortions. Some government bans could be interpreted as waiting until bleeding becomes immediately life-threatening.

NEW LEGAL AREA

Texas sued the federal government last week to block the guidance, calling it an attempt to “convert every emergency room in the country into a walk-in abortion clinic.” It is asking for a ruling that the guidelines are unlawful and an injunction blocking their enforcement.

However, legal experts say there are no precedents in court to resolve conflicts between EMTALA and state law.

Some experts say a general principle known as right of first refusal should apply — that when a federal law conflicts directly with a state law, the federal law should prevail.

And EMTALA itself contains language that says it preempts state laws that are “directly inconsistent” with its requirements.

“The law is pretty clear here,” said Douglas Swill of the law firm Drinker Biddle & Reath, which advises hospitals on regulatory compliance issues.

The reality on the ground is more complicated.

For one thing, not everyone agrees that EMTALA can pre-empt state law. James Blumstein, a professor of health law at Vanderbilt University, said the law merely establishes the conditions attached to state Medicare funding and cannot overrule state bans on abortion, which are criminal statutes affecting the do not specifically regulate emergency medical treatment.

Furthermore, enforcement of criminal law is generally left to States and there is a strong presumption against its anticipation.

“It’s pretty far-fetched to suggest that a doctor … has a duty to break a state’s criminal law and that EMTALA somehow immunizes criminal behavior under state law,” he said in an email.

The picture gets even more complicated, which means the federal government must enforce the guidance.

EMTALA allows the government to cut a hospital’s Medicare funding, although this move, which would often put a hospital out of business, is rare. It also authorizes fines and allows individual lawsuits against hospitals for violations.

It’s not clear if the law allows for further proactive steps.

“One issue that the federal government has yet to address is does the federal government have to sit around and wait for someone to die and a complaint to be made, or can the federal government take earlier steps to ensure hospitals are compliant?” said Rosenbaum.

Continue reading:

The US Department of Health and Human Services says doctors must offer an abortion if the mother’s life is in danger

Biden signs executive order on abortion, declares Supreme Court ‘out of control’

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Brendan Pierson

Thomson Reuters

Brendan Pierson covers product liability litigation and all aspects of healthcare law. He can be reached at [email protected]

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