Emergency Medical Treatment and Labor Act is no end-run around abortion bans

The emergency department is often called a hospital’s front door. For many people desperate for reproductive care, it is being seen as their last chance. But these days, getting treatment for pregnancy-related medical emergencies in the emergency department is complicated.

State abortion bans threaten access to emergency reproductive care by introducing complex legislative restrictions around what counts as a medical emergency. That’s a problem because pregnant people experiencing worrisome pain and bleeding can’t be expected to know whether or not they are facing a medical emergency.

As practicing emergency physicians, we know how difficult this can be. Even we can’t know without examination and diagnostic tests if something is a medical emergency, nor can we predict with certainty when a medically urgent issue might become life-threatening. This means state legislators, lawyers, and insurance administrators don’t have the ability to do so either. The fact that we let them is harming people.

Since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling in June 2022, a number of states have passed extremely restrictive, near-complete bans on abortion with only one exception: when a pregnant person is experiencing a life-threatening emergency. In an effort to reduce the very real dangers of these extreme bans, policymakers have made efforts to lean on federal legislation requiring emergency medical stabilization to safeguard some semblance of access to abortion care in states where abortion is so limited it puts at risk the lives of pregnant people.

The Emergency Medical Treatment and Labor Act (EMTALA), for example, requires hospitals that receive funding from Medicare (which includes the vast majority of U.S. hospitals) to provide evaluation by a physician and, if necessary, stabilizing treatment to anyone who enters an emergency department with “emergency medical conditions.” The Biden administration has pointed to this as an avenue for superseding state laws that prohibit and criminalize abortion. If a person who needs an abortion to prevent their health from being jeopardized comes to an emergency department, the federal statute should theoretically take priority over state bans that allow only for coverage for life-threatening emergencies.

All pregnant people should have a right to seek care in an emergency department if they believe they are experiencing a medical emergency. But we’re concerned that strategies that depend on delineating emergencies with restrictions on what counts as one produce ambiguities that create practical barriers to care and have the potential to deepen existing health inequities.

Requiring that a condition be “life-threatening to physical health” in order to provide abortion care — a medical treatment that is recognized by professional medical organizations as a common, safe, and necessary standard of care — is antithetical to today’s clinical values that emphasize the need for prevention and disease progression. It is cruel to subject patients to emotional suffering, physical pain, and bodily injury. It’s also unproductive. Forcing doctors to deny necessary care until an individual’s health or life is sufficiently at risk to meet an arbitrary legislative threshold can threaten their future reproductive health and may mean that people who would inevitably lose their pregnancy may also lose their ovaries, uterus, and the ability to have children in the future.

The evidence shows these laws are draconian. After a Texas law went into effect prohibiting abortion after six weeks of pregnancy — before some women know they are pregnant — a study of pregnant women at two hospitals in the state found that because their doctors could not act on active miscarriages until something horrible happened, rates of “significant” medical complications were almost twice as high compared to women in similar clinical circumstances residing in states without such abortion laws. On average, the people in the study had to wait nine days for calamity to hit, which caused almost 60% of these Texans to experience infection, bleeding, admission to intensive care, hospital readmission, or major surgery. In short, waiting those nine days merely achieved more pain, grief, disability, and harm.

As a medical student, one of us (J.T.) once took care of a young woman who had come to the hospital in a coma with one of these complications, endometritis, an infection of the uterine lining. The infection was so bad that her circulation collapsed and she developed major multi-organ system failure. This damaged her limbs so much they needed to be amputated.

A major issue with the laws and regulations that attempt to place restrictions on what constitutes a medical emergency by defining it as “life-threatening” is that these laws and regulations can’t provide patients and their doctors guidance on how these arbitrary restrictions can be operationalized in terms of the symptoms patients may experience and the physical signs doctors rely on. That makes definition more a matter of semantics rather than professional medical decision-making, which leaves the door wide open for interpretation by a vast variety of entities, including doctors, hospital administrators, lawyers, judges, legislators, and insurance plans, many of them lacking the medical experience and expertise necessary for nuanced understanding of the continuum of emergency care.

From a practical perspective, these ambiguities make people seeking abortion care extremely vulnerable to various harms, including substandard clinical care, criminal proceedings, and bankruptcy from medical bills. They also can handcuff health care providers and expose them to criminal prosecution.

While all life-threatening emergencies can be described as medical emergencies, not all medical emergencies can be described as life-threatening. Take the issue of ectopic pregnancy, which occurs when an embryo implants itself outside the uterus. This can occur in the fallopian tubes that connect the ovaries to the uterus, or even in the liver. Ectopic pregnancy happens in 1% to 2% of all U.S. pregnancies. It is definitely a medical emergency: a fertilized egg growing in a place it’s not supposed to be is a ticking time bomb. It can damage nearby organs, rip through delicate tissue, and rupture blood vessels, causing a pregnant person to bleed to death. And because an embryo cannot survive outside the uterus, pregnancy loss is inevitable. An ectopic pregnancy poses a threat to life even if the pregnant person is not showing discernable signs of dying.

As emergency doctors, let us be clear: the definition of an emergency is complex, context-dependent, and clinically nuanced. Trying to draw the line between an ectopic pregnancy that is immediately life-threatening and one that will inevitably be life-threatening is an unproductive delineation that plays with people’s lives. This boundary-setting gets even messier in practice. When an ectopic pregnancy is diagnosed in the emergency room, an OB-GYN may recommend sending the patient home with a medication to stop the fetus from growing before deciding whether it’s necessary to pursue surgery.

But some insurance plans might not cover the medication — or the requisite outpatient follow up visit — because they define emergencies as issues that can be treated only in an emergency department. Even when an ectopic pregnancy is deemed to require urgent action, some state Medicaid plans require prior authorization — which can take days — and so is impractical in emergency situations.

Billing and financial capability is a big part of health care access in the United States. Without insurance coverage, abortion services costs thousands of dollars, which is prohibitive to many people in the U.S. It’s also notable that one-third of people who seek abortions rely on Medicaid, which makes them disproportionately vulnerable to state limitations on reproductive care because the Hyde Amendment specifies that federal funds cannot be used for the cost of an abortion except in the case of rape, incest, or life-threatening circumstances. This means that even if people covered by Medicaid can plead that, under EMTALA, their cases meet the requirements for reproductive issues that represent a “threat to health” requiring emergency stabilization, their care may not be covered by state Medicaid programs that require a different, similarly undefined, and yet stricter status of “life-threatening” in order to qualify for coverage.

Because many state Medicaid programs and EMTALA cover and pertain only to emergency medical conditions, this arbitrary line — whether something is an emergency or not — is exceedingly important. It becomes crucial, especially for individuals with financial constraints, to know and be able to prove whether they are facing a medical emergency. But there’s no concrete rubric. Navigating the process requires significant health and bureaucratic literacy, and portions of this decision are out of patients’ control because they are in the hands of players like health care providers, as well as insurance companies that might make coverage decisions only long after medical care has been provided. These dynamic variables shroud the entire process in mystery.

We’ll use Texas Medicaid regulations as an example. The mandatory documentation for reimbursement on claims for abortion services is hyper-specific and includes a hand-signed physician statement with no allowance for “substitute wording.” Faxed and email documentation are not accepted, so paperwork must be sent by mail. Specific billing codes and modifiers must be used. And the hospital must keep original certifications of these records.

Such specific requirements are extremely difficult for clinicians to keep up with during a busy shift in the emergency department — if emergency clinicians even know about those requirements. Most have no idea they exist because they are buried in Medicaid state plans that are dense and technically complex, and that vary dramatically from state to state.

Some people may know they can receive abortion coverage if it’s a medical emergency. But they won’t know the criteria to prove it was a medical emergency until after the fact, meaning their claim can be denied later, leaving them with debilitating bills. Worse, they risk accruing enormous medical debt without even a guarantee that they’ll be able to access the care they need. Hospitals and insurance companies may decide that their reason for seeking care isn’t an emergency and therefore doesn’t warrant abortion care or financial coverage.

This kind of “system” targets young and poor people of color who already bear greater suffering. But this grey area might also affect health care providers. Physicians could find themselves in terrible moral, professional, and judicial predicaments in which they are found negligent for failing to provide a standard of care, even in settings where an abortion will save a patient’s life, while simultaneously risking punishment in states that are exacting harsh penalties for performing this medical procedure.

The consequences for providing abortion care aren’t small: It might be a $100,000 fine in Arkansas or up to a lifetime prison sentence in Texas. South Carolina recently passed a law that criminalizes speech about safe reproductive care; it’s so extreme that an individual can be imprisoned for 25 years just for providing someone else with information about how to get a safe abortion.

Given the limitations, an attempt to make emergency departments a last stop for providing reproductive care to vulnerable patients is well-intentioned but lacks feasibility if unqualified political, social, and legislative players are allowed to assert punitive, retroactive, and uninformed delineations on what constitutes a medical emergency. Pregnant people and their providers should not be penalized for failing to understand esoteric requirements for their visits to qualify as medical emergencies, particularly when such policies are currently ambiguous.

We’re not saying that EMTALA should be eschewed as a potential access point for abortion care. We are saying that adjudicating what counts as a medical emergency is a complicated medical distinction that needs to be left to the trained acumen and appraisal of physicians.

Jennifer W. Tsai is an emergency medicine physician in New Haven, Connecticut, and a 2022 STAT Wunderkind. Hazar Khidir is an emergency physician and researcher in New Haven.

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