#emtala

[phoenixyfriend]

A fascinating listen from the NYT podcast "The Daily" about the federal government's push to combat some of the most extreme abortion bans using a 1980s federal law called EMTALA. I will note that this is not the ONLY attempt to combat the restrictions, but that a greater pushback is still reliant on tipping the House and Senate left by enough to pass abortion protections. In the meantime, this partial fix is intended to address the issue of dangerous medical complications that are routinely going unaddressed or directed out of state due to the fear of repercussions for "not being truly life-threatening."

This coverage includes audio recordings of Supreme Court questions during the period on which they heard arguments.

For an explanation on how "life of the mother" is inadequate and vague, may I suggest Mama Doctor Jones (a registered ob/gyn from Texas who is currently practicing in New Zealand.) She has a number of videos on this topic, but this one addresses one of the extreme situations that are brought up in the arguments and questioning:

[spooniestrong]

Anyone who has gone to a hospital’s emergency room expecting to receive medical care — not knowing where else to turn, uncertain whether a loved one is having a medical emergency and what can be done about it, or unsure if they can pay — has relied on a law they couldn’t name: the Emergency Medical Treatment and Labor Act (EMTALA). It's now in danger from the Supreme Court.

[justinspoliticalcorner]

Susan Rinkunas at Jezebel:

Today the Supreme Court held a brutal two hours of arguments in a case about whether women and pregnant people deserve life-saving medical care if that care happens to be abortion. (Yes, this is the second abortion case this term.) Several justices, and the lawyer for the plaintiff, trotted out wild hypotheticals and invoked the dangerous concept of fetal personhood in a disturbing preview of the future that awaits every state if Donald Trump wins the presidency. It could mean that people face horrible medical mistreatment simply because they’re pregnant and, at the most extreme end, could lead to a federal abortion ban.

The case, Moyle v. United States, is about whether state abortion bans like Idaho’s can override a longstanding federal law that requires emergency rooms to stabilize patients, including by offering abortion if necessary. That law, the Emergency Medical Treatment and Active Labor Act (EMTALA) says hospitals that accept Medicare funding have to stabilize patients in medical crises and deliver babies when women are in labor. But given that some states passed abortion bans that only have exceptions to prevent death, not to treat threats to health, the Biden administration reiterated hospitals’ obligations after the Dobbs decision, and later sued the state of Idaho. Idaho strongly disagrees that its hospitals should have to provide abortions for threats to health—like when a woman’s water breaks in the second trimester, far too early for a baby to survive but, when left untreated, could result in a life-threatening infection called sepsis or extensive blood loss known as hemorrhaging. The state worked with the right-wing Christian legal firm Alliance Defending Freedom to craft its legal arguments and one such argument raised in briefs and in the courtroom is the claim that a fetus is a patient under federal law.

Justice Elena Kagan asked Josh Turner, the lawyer representing Idaho, how the state ban functions when doctors believe a woman’s pregnancy complication might cause her to lose her uterus, and thereby her ability to have children in the future, but not cause her to die. Turner’s response was chilling: “Congress under EMTALA recognizes that there are two patients to consider in those circumstances. And the two-patient scenario is tough when you have these competing interests.” This logic is terrifying, mostly because a fetus is only a patient under EMTALA when there aren’t health threats to the pregnant person. The woman is the patient first and foremost. Idaho is trying to claim that because the words “unborn child” are used in the law, it means that the interests of the woman and the fetus have equal weight, when they do not. This is fetal personhood and it’s scary not least because the people being denied ER treatment in Idaho and other states are often in their first and second trimester and there’s no way the embryo or fetus will survive. The fetus is a lost cause at that stage, yet states like Idaho say that women themselves need to be facing death before they can have an abortion. (People coming to ERs later in pregnancy with complications would typically have labor induced and then doctors would try to keep the fetus alive.)

[...] If by some miracle the court rules against Idaho, that doesn’t mean abortion access is safe by any means. Barrett and Gorsuch both asked if a future Congress could ban hospitals from performing any abortions or gender-affirming surgeries as a condition of accepting Medicare funds. Prelogar said yes, Congress does have the power to pass laws like that. And of course, there is the lurking threat of the 19th-century Comstock Act which a Republican president could enforce to ban abortion nationwide, even at clinics in states with abortion protections.

SCOTUS heard oral arguments on a pair of cases pertaining to EMTALA on Wednesday, and the radical right-wing black robed theocrat-majority are likely to rule in favor of Idaho's cruel anti-abortion law to weaken EMTALA.

See Also:

HuffPost: Conservative SCOTUS Almost Entirely Ignores Pregnant Patients In Emergency Abortion Arguments

Vox: The Supreme Court’s likely to make it more dangerous to be pregnant in a red state

[ttpd-chair]

“What is at stake now – what was being debated in court on Wednesday – is how much women can be forced to suffer, how much danger they can be placed in. The anti-choice movement, and its allies on the bench, have shown once again that there is no amount that will satisfy them.”

[tomorrowusa]

When you vote for president, you are voting for the person who appoints federal judges – including those on the US Supreme Court. When you vote for US senator, you are voting for one of the people who confirms those judges.

Federal judges have lifetime appointments. So bad choices for president or senator live on long past the four-year or six-year terms of the elected officials who put those judges on the bench.

If you want to know what a fully Trumpified federal judiciary would be like, check out the US Court of Appeals for the Fifth Circuit. It covers Texas, Louisiana, and Mississippi. The Fifth Circuit makes the current US Supreme Court look liberal and capable.

The latest atrocity from the Fifth Circuit involves a decision where a state law forbidding abortion takes precedence over the survival of woman seeking emergency treatment.

The case is Texas v. Becerra, and all three of the United States Court of Appeals for the Fifth Circuit’s judges who joined this opinion were appointed by Republicans. Two, including Kurt Engelhardt, the opinion’s author, were appointed by former President Donald Trump. The case involves the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute requiring hospitals that accept Medicare funds to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment.) EMTALA contains no carve-out for abortion. It simply states that, whenever any patient arrives at a Medicare-funded hospital with a medical emergency, the hospital must offer that patient whatever treatment is necessary to “stabilize the medical condition” that caused the emergency. So, if a patient’s emergency condition can only be stabilized by an abortion, federal law requires nearly all hospitals to provide that treatment. (Hospitals can opt out of EMTALA by not taking Medicare funds but, because Medicare funds health care for elderly Americans, very few hospitals do opt out.) This federal law, moreover, also states that it overrides (or “preempts,” to use the appropriate legal term) state and local laws “to the extent that the [state law] directly conflicts with a requirement of this section.” So, in states with sweeping abortion bans that prohibit some or all medically necessary abortions, the state law must give way to EMTALA’s requirement that all patients must be offered whatever treatment is necessary to stabilize their condition. It is important to emphasize just how little EMTALA has to say about abortion. EMTALA does not protect healthy women who wish to terminate their pregnancies. Nor does it preempt any state regulations of abortion, except when a patient is experiencing a medical emergency and their doctors determine that an abortion is the appropriate treatment. But when an emergency room patient presents with a life-threatening illness or condition — or, in the words of the EMTALA statute, that patient has a condition that places their health “in serious jeopardy,” that threatens “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part” — then Medicare-funded hospitals must provide whatever treatment is necessary. The Texas case, in other words, asks whether a state government can force a woman to die, or suffer lasting injury to her uterus or other reproductive organs, because the state’s lawmakers are so opposed to abortion that they will not permit it, even when such an abortion is required by federal law. And yet, despite the fact that the EMTALA statute is unambiguous, and despite the fact that this case only involves patients whose life or health is threatened by a pregnancy, three Fifth Circuit judges told those patients that they have no right to potentially lifesaving medical care.

Of course the ruling by the Fifth Circuit lacks basic logic. If the mother dies, the fetus is likely lost as well anyway. d'oh!

All three judges on the panel are Republicans – two having been appointed by Trump. Don't expect judicial genius from these folks.

Engelhardt’s opinion is surprisingly brief for such a consequential decision, and for one that reads a straightforward federal law in such a counterintuitive way. The section of the opinion laying out Engelhardt’s unusual reading of this federal law is only about eight pages long — yet it contains at least three separate legal errors.

This case will probably end up before SCOTUS. The best we should expect is for the Supremos to toss out the decision because of the legal errors made by the Fifth Circuit.

But in the long run, to protect reproductive freedom it's necessary to keep Republicans out of the White House and out of the majority in the Senate for the foreseeable future.

Be A Voter - Vote Save America

[mental-mona]

This is infuriating and horrifying, but not particularly surprising.

[thepro-lifemovement]

President Biden called on the U.S. Department of Health and Human Services (HHS) to consider “updates” to past guidance requiring “emergency medical care” through the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”).[2]

EMTALA was enacted in 1986 as a response to disturbing reports of some hospital emergency rooms refusing to treat patients in need, sometimes because of their inability to pay. Some of these patients were pregnant women, and some were refused care when they were beginning to go into labor. Congress therefore required that in such cases emergency room personnel should at least provide any needed stabilizing treatment to prevent the emergency medical condition from getting worse.

The Administration argues that EMTALA must encompass abortion as a “stabilizing” treatment because, if Congress wanted to exclude abortion, “it knew how to say so” (Brief, p. 27).

But that claim is absurd. Abortion is not “stabilizing” even for the mother, as it radically changes her situation rather than maintaining the status quo. Even live delivery is not described as a “stabilizing” treatment, unless the woman is already in labor and delay may harm her or her unborn child. And destroying the child is emphatically not stabilizing for the child. Everything in EMTALA reflects an understanding that both mother and child are patients deserving care.

The Administration also presents no evidence that any hospital has been penalized for violating EMTALA because it failed to perform an abortion, before or after any previous Guidance. That is no surprise, as even this Administration seems not to have explicitly alleged such a requirement until July 2022.

In effect, the Administration’s position seems to be that the recent demise of abortion as a constitutional “right” has somehow created a new federal obligation to treat abortion as standard health care that did not even exist under Roe.

Its Brief even admits that the July 2022 Guidance has no force of law in itself. If it did have such force, the Administration would be subject to a legal challenge for not obeying the requirements of the Administrative Procedure Act regarding the preparation, allowance for public comments, etc. for substantive regulations.[16] So the Administration insists that the mandate for abortion arises only from the text of EMTALA itself – and as noted above, that claim is false.[17]

In its Brief, the Biden administration claims that its misuse of EMTALA to force hospitals to provide abortions “is entirely consistent with—and, in fact, flows directly from— EMTALA’s text, and does not conflict with other law” (p. 3). These claims are false. The Administration policy is unsupported by the language and history of EMTALA itself, and explicitly forbidden by other equally authoritative federal laws. The claim that EMTALA conflicts with, and overrides, federal nondiscrimination laws on abortion was even rejected by the previous Democratic administration.

If the Department of Health and Human Services threatens a hospital with denial of federal funds for not providing abortions, it is the Department itself that risks losing its federal funds. The current Administration is playing a dangerous game by taking its obsession with abortion as “health care” to this extreme.

[dontmeantobepoliticalbut]

The Justice Department announced Tuesday that it was suing the state of Idaho over a restrictive abortion ban that would potentially threaten the proper treatment of pregnant emergency room patients.

In an afternoon press conference, Attorney General Merrick Garland said the Idaho law was in violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law that states any “hospital that receives Medicare funds must provide necessary stabilizing treatment to a patient who arrives at an emergency room suffering from a medical condition that could place their life or health in serious jeopardy,” which in some instance could require an abortion.

“When a hospital determines that an abortion is the medical treatment necessary to stabilize a patient’s emergency medical condition, it is required by federal law to provide that treatment,” Garland said. “As detailed in our complaint, Idaho’s law would make it a criminal offense for doctors to provide the emergency medical treatment that federal law requires.”

“Although the Idaho law provides an exception to prevent the death of a pregnant woman, it includes no exception for cases in which the abortion is necessary to prevent serious jeopardy to the woman’s health. Moreover, it would subject doctors to arrest or criminal prosecution even if they performed an abortion to save a woman’s life, and it would then place the burden on the doctors to prove they are not criminally liable.”

The Idaho law, set to go into effect on Aug. 25, would make providing an abortion a felony punishable by up to five years in prison. According to the law, a doctor can avoid prosecution by proving “the abortion was necessary to prevent the death of the pregnant woman” or if a copy of a report from specific agencies delivered to the physician says the pregnancy is the result of rape or incest. There is no defense for the health of the patient.

The Supreme Court’s June ruling in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade and federal protections on abortion, resulting in strict bans and new laws passed by Republican-controlled states that cut off access to reproductive health for millions. Since those restrictions have gone into place, there have been numerous reports of delayed treatment as doctors have to wait for their patients' conditions to grow worse.

“In the days since the Dobbs decision, there have been widespread reports of delays or denials to pregnant women experiencing medical emergencies,” Garland said. “We will use every tool at our disposal to ensure that pregnant women get the medical care that they are entitled to.”

In the wake of the Dobbs ruling, the Justice Department established a Reproductive Rights Task Force chaired by Associate Attorney General Vanita Gupta. The action against ldaho was described as one of the first major actions of that task force, but Garland said that any state law preventing a hospital from fulfilling its obligation under EMTALA would be in violation of federal law and potentially challenged.

"We know these are frightening times for pregnant women and their [health care] providers, and the Justice Department through the work of its task force is committed to doing everything we can to continue lawful access to reproductive services," said Gupta at the Tuesday briefing.

When asked why Idaho's was the first law to be challenged, Garland said the Justice Department felt the law directly conflicted with EMTALA, was set to take effect soon and would threaten the health of women coming to emergency rooms, adding, “When we found that statute it was appropriate for us to vindicate the rules that Congress established with EMTALA; that’s why we’re bringing this case.”

Garland also rebuffed the suggestion from a reporter that this action “was going around” the Supreme Court’s June decision.

“The Supreme Court said that each state can make its own decisions with respect to abortion, but so too can the federal government,” Garland said. “Nothing that the Supreme Court said, said that the statutes passed by Congress, such as EMTALA, are in any way invalid. It’s quite the opposite. The Supreme Court left it to the people’s representatives. EMTALA was a decision made by the Congress of the United States. The supremacy clause is a decision made in the Constitution of the United States. Federal law invalidates state laws that are in direct contradiction.”

[autisticeducator]

So apparently everyone either didn’t know/forgot EMTALA is federal law.

It is the same law that prohibits the ER from refusing patients based on their ability to pay.

In an cases where the pregnant person’s life is at risk and they seek care in an emergency room that takes Medicare (which is most of them), they must provide an abortion if it would stabilize the pregnant person.

The law is federal so it trumps all anti abortion laws.

It isn’t codifying Roe (Congress has to do that) but at least the Department of Health and Human Services has provided clarification on an option that was technically always possible but needed to be openly stated.

(The fear of losing Medicare and Medicaid funding for the entire hospital and fines should be enough to remind hospitals to follow established federal law).

[snarky-joan]

Biden administration says federal law preempts state abortion bans when emergency care is needed - CNN

It's hard to call anything regarding abortion rights in the US "good news" at this point but I am glad the Biden admin clarified this. Essentially EMTALA requires hospitals to provide stabilizing care, including abortion when necessary for the mother's health. (Including ectopics, miscarriage complications and other conditions).

Basically this means the vague "life of the Mother" exceptions in State laws banning abortion must comply with EMTALA at a minimum and any law without an exception is void when EMTALA applies.

[krisje3]

The Next One

Someone at the Seder table asked the Groom about the outbreak of bird flu, aka H5N1 Avian Influenza, in cattle. He had just finished his shift as an attending physician on the Intensive Care Unit at his hospital. He was still seeing patients recovering from severe post-Covid complications. My brave, Intensivist son-in-law was about to dig into my specialty Passover brisket when he put down his…

[justinspoliticalcorner]

Ian Millhiser at Vox:

Moyle v. United States should have been a very easy case. A federal law, the Emergency Medical Treatment and Labor Act (EMTALA), requires nearly all hospitals to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” Though the law does not specifically mention abortions, EMTALA is written in capacious terms — requiring covered hospitals to perform an emergency abortion when that is the appropriate treatment to resolve a patient’s medical emergency.

And yet, last January, the Supreme Court effectively nullified EMTALA, at least for patients who require abortion. Moyle, which the Court will hear the last full week of April, asks whether this nullification should be made permanent. The case involves a conflict between the federal law and Idaho’s unusually restrictive anti-abortion statute, which permits physicians to perform an abortion when “necessary to prevent the death of the pregnant woman,” but not when a patient’s pregnancy only threatens to disable or seriously harm them. EMTALA, meanwhile, requires most hospitals to provide whatever care is necessary to stabilize a patient who is at risk of “serious impairment to bodily functions,” “serious dysfunction of any bodily organ or part,” or other nonfatal consequences that are defined as medical emergencies by EMTALA. So, for example, if a patient’s uterus could be destroyed, but she is likely to survive if untreated, EMTALA requires hospitals to perform an abortion if terminating the pregnancy would stabilize the patient’s medical condition.

When federal law conflicts with a state’s law, the Constitution provides that the federal law “shall be the supreme Law of the Land” — and thus the state law is “preempted.” EMTALA also contains a provision stating that state and local laws must give way “to the extent that the [state law] directly conflicts with a requirement of this section.” So, again, Moyle should be an easy case, and a federal district court ruled in 2022 that Idaho’s abortion ban must give way to EMTALA when a pregnant patient has a medical emergency that must be treated with an abortion. Last January, however, the Supreme Court temporarily blocked this district court’s order, reinstating Idaho’s sweeping abortion ban while the justices ponder the Moyle case. That’s a strong sign that, despite EMTALA’s clear text, the justices could permanently neutralize the federal law’s protections for people who must have an abortion to avoid catastrophic medical consequences. (No justice publicly dissented from this temporary order, but justices sometimes disagree with the Court’s orders but do not note their dissent.)

Moyle is a test of whether these justices will follow the text of a clearly drafted law

EMTALA is a reasonably straightforward statute. It only applies to hospitals with emergency rooms, and only to those hospitals that accept Medicare funds. That’s most hospitals because Medicare provides health coverage to Americans over the age of 65. The primary purpose of this law is to ensure that hospitals provide emergency medical care to patients who may not be able to pay for it. But the law is also written in expansive terms. It states that “if any individual ... comes to a hospital and the hospital determines that the individual has an emergency medical condition,” the hospital typically must “stabilize the medical condition.” (In limited circumstances, the hospital may transfer the patient to another facility.) [...]

Idaho also wants the Supreme Court to fundamentally alter the balance of power between Congress and the states

Idaho’s two legal teams also make a pair of arguments that seek to weaken Congress in fundamental ways and to place novel new limits on the federal government’s ability to preempt state laws. The first of these arguments is that EMTALA — or, at least, the Biden administration’s textualist reading of EMTALA — violates something called the “major questions doctrine.” The major questions doctrine claims that Congress must “speak clearly” if it wishes to give a federal agency the power to decide a question of “vast ‘economic and political significance.’” This doctrine is not mentioned in the Constitution or in any federal law, and appears to have been made up entirely by Republican appointees to the Supreme Court.

Even if you accept this made-up doctrine as legitimate, however, it is not at all clear why it is relevant to the Moyle case. By its own terms, the major questions doctrine only applies when a federal agency claims the authority to decide an important policy question. But no federal agency — meaning, an agency within the Executive Branch — has made any policymaking decision of any kind in Moyle. Rather, the question is whether a law enacted by Congress requires Idaho hospitals to perform emergency abortions. Idaho, in other words, is arguing that a made-up legal doctrine, which appears in no legal text and that was fabricated entirely by judges, should be read to limit Congress’s ability to decide important policy questions. If the Court agrees, that would be an extraordinary transfer of power from an elected Congress to an unelected judiciary. The state’s strongest legal argument, meanwhile, turns on the fact that EMTALA’s obligations only apply to hospitals that accept federal Medicare funds.

[...]

The Court’s decision in Moyle is likely to determine whether some women live or die

Theoretically, Idaho’s law permits abortions when necessary to save a patient’s life. Many other states with abortion bans have broader exemptions on the books, which theoretically permit an abortion when a patient faces serious health consequences that may not be life-threatening.

In practice, however, women in many states with strict abortion bans have struggled to obtain lifesaving or otherwise medically necessary care. In one case, a Texas woman with a nonviable pregnancy was told she had to wait to receive an abortion even though her body was discharging blood clots and a strange-smelling yellow liquid, Her doctors eventually agreed to induce labor after her vagina started to emit a dark, foul-smelling fluid.

This happened, moreover, despite the fact that Texas law permits abortions when a patient “has a life-threatening physical condition” or faces a “serious risk of substantial impairment of a major bodily function” that relates to their pregnancy. Incidents like this are common because many state legal provisions permitting emergency abortions have never been interpreted by any court, or have been interpreted largely by Republican judges who are hostile to abortion. So hospital lawyers often cannot know in advance when their state’s courts will allow doctors to perform an abortion, and doctors who guess wrong risk very serious criminal charges. If the Supreme Court reads EMTALA to say what it actually says in Moyle, that would relieve some of this uncertainty. It would mean that doctors or patients who cannot obtain a state court order permitting an emergency abortion could also seek such an order from federal court. It would also mean that, over time, a body of case law would develop establishing when federal law entitles someone experiencing a medical emergency to an abortion.

SCOTUS is set to hear a pair of cases regarding EMTALA and abortion this week. The pair of cases, Moyle v. United States and Idaho v. United States, deal with Idaho's abortion ban regarding hospitals and abortion when the life of the pregnant person is at risk of death or serious harm otherwise.

See Also:

HuffPost: The Supreme Court Is About To Debate Whether States Can Outlaw Life-Saving Abortions