Checking in on EMTALA: The Status of Nationwide Emergency Abortion Access

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a landmark federal law that revolutionized the right to emergency healthcare and provides crucial protections for pregnant people. Alexa Kolbi-Molinas, Deputy Director at the ACLU’s Reproductive Freedom Project, sits down to talk with us about the status of the case and what we can continue to do to protect emergency abortion services.

When EMTALA was originally passed by Congress in 1986, the law directed every hospital in the country with an emergency department to provide whatever healthcare was necessary to any individual who visited the hospital presenting with an emergency medical condition. This is especially important for pregnant people, who require intensive attention in and outside of emergency situations. For the nearly 40 years EMTALA has been in effect, it was understood across party lines that if someone needs emergency abortion care, EMTALA protects that access. But following the overturning of Roe v. Wade, Idaho’s extreme abortion ban did not feature an exception for those in emergencies. The Department of Justice sued Idaho to ensure EMTALA’s nationwide reach and the case advanced to the Supreme Court. The lawsuit against Idaho has now been dismissed under the new administration.

Links from this episode

ACLU’s Reproductive Freedom Project
The Supreme Court Just Declined to Protect Emergency Abortion Care for Pregnant Patients. Here’s What to Know
How The Supreme Court Could Endanger Access to Emergency Abortion Care
SCOTUS Had a Big Term… What Does it All Mean for Health, Rights, and the Administrative State?

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Jennie: [cat meows] Hi rePROs. How's everybody doing? Apparently Cinder decided she wanted to take part in the intro as well as the rest of the podcast. She has been a little chatty the last couple episodes. People may have heard her last week share her thoughts on Medicaid. She also shares her thoughts today on EMTALA during the episode. So, I guess it's only fitting she chirps in during the intro. She's lucky she's cute, but she wants to participate so she has thoughts, so, so glad she can participate. Let's see, what else? I'm enjoying the weather. It has been nice. I've been able to have my windows open. I love having windows open to get some fresh air in the place. It makes me happy, but nowhere near as happy as it makes Luna. Y'all, when she hears me unlock a window, she comes barreling from wherever she is to get in that window the second I get it open and we'll sit there all day just enjoying the fresh air and staring out outside. It is so funny. But that is like her happy place. So, she gets mad when it's too hot and I have the air conditioning on and when it's too cold and the heat's on so she can't sit in the open window, but it's a sweet spot right now where she can sit and enjoy the outside. I think other than that, like, I'm still feeling a little stressed and all the things, but the worst of it should hopefully be over tomorrow because we are releasing our annual 50-state report card and sexual and reproductive health. So, you can see how your state fairs compared to other states when it comes to sexual and reproductive health. And this year, super exciting—we created a microsite where you can go and not just see the usual static map we have, but you can also go and play by indicator so you can see how your state compares to other states on a specific indicator. I'm really excited about the new microsite and the release of the report card in general. It has been a lot of work this year with creating the microsite and the report card, but I think they are great tools and I am very excited for y'all to see it. And this year we are gonna do something a little different. I am terrible at promoting myself. It is just, I think it's maybe some of the Midwestern in me, like it feels like bragging or something. I don't know. But, so I'm not good at coming and talking about my work, but this year I was convinced that we should have an episode where I talk about the report card. So, next week I will be joined by a special guest who will put me on the other side of the mic and interview me for a change where I will talk about our new 50 state report card. And I am so excited to have that conversation so y'all can learn all about it and I can talk like I know what I'm talking about instead of just being the person asking the questions. So, very exciting to look forward to. I think with that maybe we'll turn to this week's interview. I am very excited to talk about EMTALA and the Trump administration's decision to drop the lawsuit against Idaho. And joining me, I am so lucky to have Alexa Kolbi-Molinas with the ACLU to talk about what is happening and what it means. And with that, let's go to my interview with Alexa.

Jennie: Hi Alexa. Thank you so much for being here today.

Alexa: Hi, thank you so much for having me.

Jennie: Before we get started, would you like to take a second and introduce yourself and include your pronouns?

Alexa: Sure. I'm Alexa Kolbi-Molinas, pronouns she/her, and I'm a deputy director at the ACLU's Reproductive Freedom Project.

Jennie: I am so excited to have you on to talk about EMTALA and what the Trump administration did recently, but I feel like maybe for people who aren't as familiar, we should take a couple steps back before we get to that and maybe start with the really basic, like, what is EMTALA?

Alexa: Yeah, I think that is the right place to start. So, EMTALA, which stands for Emergency Medical Treatment and Labor Act, is something most people may- probably haven't heard of unless they work in hospitals. But it really was and is a landmark federal law that revolutionized emergency care in this country and in particular has provided crucial protections for pregnant people. So, EMTALA was enacted nearly 40 years ago, and at the time, Congress was responding to what was a nationwide crisis in American hospitals. Because state laws didn't adequately protect people's ability to get emergency care, people were being turned away from hospitals altogether—left out in the street—or they were being what is called dumped from one hospital to another while their conditions deteriorated because the hospitals essentially just didn't want to deal with them and they had no obligation to do so. And this was particularly bad for pregnant people because as you know, I think we know, pregnancy care is expensive, liability is high. So, pregnant people in particular were suffering from basically the hospitals' rights to just turn them away. So in response to this nationwide crisis, Congress provided a nationwide solution, which is uncommon to hear of these days, right? But apparently back in 1986 they could do this. And so, Congress provided a nationwide solution by enacting a law, EMTALA, that says essentially every hospital in the country with an emergency department has to provide whatever emergency care is necessary to any individual who comes to that hospital experiencing an emergency medical condition. And Congress inserted a clause into EMTALA that says, and by the way, if there are any state laws that conflict with what EMTALA is requiring, then EMTALA overrides, right? Because Congress really wanted to make it clear and ensure that wherever you were in the country, if you went to a hospital, you would get the care you need. It didn't matter what state law said. So, that's what EMTALA is and was. And I think, you know, for many people may not remember the time before EMTALA, and of course that's not to suggest that our healthcare system is perfect in any way, but it really was a very different world, particularly for pregnant people before EMTALA.

Jennie: It is kinda wild to think that hospitals would just not treat somebody who came to the emergency room.

Alexa: Yes. I mean, and there were, you know, when Congress was deliberating over this law and then ultimately enacted it, you know, there is so much in the legislative history about stories that were in newspapers at the time of pregnant people delivering in their cars, delivering on the street, you know, people dying from lack of care. And again, I don't wanna suggest that we have a perfect world right now.

Jennie: Yeah, yeah.

Alexa: But really, it was bad enough to get Congress to respond and President Reagan to sign this into law.

Jennie: Okay. So that brings us up to the Dobbs decision and how we saw states reacting and in response to what their state laws required when they banned abortion.

Alexa: Yes. For 40 years, you know, that EMTALA has been, or nearly 40 years that it's been in effect, it was understood across Democratic and Republican administrations that if emergency abortion care is the emergency care someone needs, then that's what EMTALA requires. Even the first Trump administration recognized that. But then, like you said, we have the summer of 2022 and the Dobbs decision overturning Roe v. Wade, and in the wake of that decision, Idaho passed an abortion ban that is an outlier even among abortion bans, right? Any abortion ban is extreme. But this one was even more extreme than most because it didn't have an exception, any exception for the health of the pregnant person, even in emergencies. So, the only time a doctor in Idaho wouldn't go to jail for providing emergency abortion care was if they could prove that the care was quote, "necessary," to avert death. And of course, that's not how medicine works. If we had a crystal ball, if doctors had a crystal ball, then I think, you know, our treatment and care would be very different. The whole point in an emergency is you want someone to act before you are on the brink of death.

Jennie: Yeah. It feels like a giant game of chicken with people's lives.

Alexa: Oh, absolutely. Absolutely. And so very quickly, you know, this law, this ban took effect in July of 2022. The next month, DOJ sued Idaho, the Department of Justice sued Idaho and said, look, EMTALA is a federal law and it overrides any attempt to prohibit emergency care. So, we are seeking a preliminary injunction against your ban only to the extent that it prohibits essentially tala abortions. And I just think it's important to recognize how narrow that was. I mean, you know, I think if they could have sued over the entire abortion ban, they wouldn't. But there's no federal law that would let the DOJ sue a state over just banning abortion. It was just about emergency care. So, it was so narrow, right? Idaho could continue to enforce its abortion ban in the vast majority of circumstances. But apparently even this one segment of emergency care was too much. And so, to make a long story short, Idaho went all the way to the Supreme Court in their pursuit of the right to put doctors in jail for providing emergency abortion care to their patients. And in January of 2024, the Supreme Court issued what's called a stay of the preliminary injunction that was in Idaho. So, essentially the district court had issued an order that was protecting emergency care in Idaho while the case was going on and the Supreme Court stopped it. And at that point, hospitals in Idaho, which now lacked any protection for EMTALA abortions, were put in the position of airlifting pregnant people out of state to get the care they need at a rate of two a month, which was vastly more-

Jennie: Wow.

Alexa: -than they had, you know, ever seen in, like, a year right before then. So, it was-

Jennie: [cat meows] I know it was really bad, buddy.

Alexa: Hilarious. And so as a result, the hospitals were airlifting people out of state. Then last summer the Supreme Court decided actually we're not gonna rule on this case at all likely because of the impending election, and they restored the preliminary injunction. So after six months, the emergency care was restored in Idaho and they basically just sent the case back down for further arguments, which brings us to a couple weeks ago on March 5th when the new administration, rather than continue to defend this basic, basic but essential right to emergency care, decided to dismiss the case against Idaho altogether. And so, that's where we are today. I do think though it is important to note that St. Luke's Hospital, the largest hospital system in Idaho, essentially fearing that this would happen when the administrations changed, brought their own lawsuit and was able to secure a temporary restraining order. So fortunately, the very cowardly act by the Trump administration to dismiss this suit hasn't resulted in a gap in coverage. Emergency care is still protected by court order in Idaho, but we know Idaho politicians are gonna continue to fight tooth and nail as they have, you know, for the past two and a half years to try to deny people this care.

Jennie: This is just like one of those things that I know I shouldn't be shocked or surprised, but like, it is just completely unbelievable to me that we are fighting over letting people's health suffer and possibly die rather than let them get a needed abortion, like, it is again, it shouldn't be shocking, but it is still shocking that this is the fight we are having to have.

Alexa: I mean, just two years after Roe is overturned, this is where we are, we're begging for scraps essentially, right?

Jennie: Yeah.

Alexa: We are begging for the right not to die or suffer severe health consequences from pregnancy loss. And I think it's important to recognize the cases in which this emergency abortion care is required are cases of pregnancy loss. There is no saving the pregnancy, but what there should be is the ability to save the health and life of the pregnant person. And that is what we are apparently having to fight for.

Jennie: I, this makes me think, oh man, so I grew up and went to Catholic school and so back when I started at Population Institute, I was like building our Facebook page and, and whatever, and I was working on maternal health and did a post, like, trying to track people talking about, I think it was a woman was dying every minute globally at that time. And somebody I went to grade school with then came on and was like, "a woman's greatest joy should be to die bringing life into the world." And I was just, I couldn't believe that was a stance somebody would take. So, like, it was just so shocking to me that those are the types of conversations some people are having.

Alexa: Yeah. And you could really, I don't know if you listened to the Supreme Court arguments in this case last year, but the women justices really were feeling that rage. And I also think there was a very sort of important symbolic exchange between the then Solicitor General Elizabeth Prelogar and Justice Alito, where essentially he had to say, well, I'm not suggesting that women aren't people under the law. And it was pretty clear that that's exactly what was being suggested.

Jennie: But, like, actually that's what you are. Okay, so what, what do we need to do to ensure that people are able to access this emergency care?

Alexa: Yeah, I mean look, this is not just an Idaho issue, right? The administration has sent a clear message that they would rather women die than access abortion care. And so, they have abandoned pregnant people nationwide. But still it's important to note EMTALA is still law, right? An individual can still sue a hospital if they're denied care that's required under EMTALA. So, I do think one thing people can do is know their rights and if they are a loved one or a loved one are pregnant, talk to their doctors about how their hospitals handle emergencies. Especially if you live in a state where abortion is restricted to some extent, you know, doctors and hospitals should be putting patients first, not politicians. And we hear a lot about over compliance or pre-compliance, you know, in response to President Trump. But I think, you know, this started even before President Trump took office and started really with the Dobbs decision. I think if hospitals really were able to take a stand, and I completely understand the fear that criminal liability poses to hospitals and to the doctors who work there but EMTALA is still law. And so, people should talk to their doctors and hospitals to ensure that they are getting the care or will get the care they need because of course you can't plan for an emergency, you can't schedule your emergency abortion, right? So you should find out what is going to be provided to you if the unfortunate circumstance happens. You know, the vast majority of people in this country do support access to abortion and emergency abortion care in particular, but not everybody may realize what the administration has done. So, I think that's another thing people can do, right? Talk to those in your community and find local groups like ACLU affiliates or other local groups that are working on these issues and then you can really plug in to learn about future actions to make your voice heard.

Jennie: So, one of the things I, right before I talked to you, I had a conversation with Jess Pieklo at Boom! Lawyered, and she was talking about Colorado looking to pass a state version of EMTALA. Is that going to be enough to protect people or are we worried that the administration would then sue those states? Like what, what are the protections that we could get with state-level laws?

Alexa: There are a number of states like Colorado that are looking at passing their own, basically, we'll just call them a state EMTALA. Some of them are abortion specific, some of them are general emergency care laws. Some states that already have emergency care laws are maybe also considering amending them to make clear that abortion can't be excluded. In general, this is something states are permitted to do. I think the one area, you know, I don't wanna give anybody ideas. The one area in which you could see the Trump administration respond is the extent [to which] these laws have mandates that don't allow refusals. We saw this in the first Trump administration when they went after California for their abortion insurance coverage law and stripped them of hundreds of millions of dollars of federal money in response to that. So, I think sometimes when you see attempts to mandate abortion care, sometimes you will see the federal government using these so-called healthcare refusal laws that are at the federal level to try to coerce and threaten states not to do it. But I think, you know, you can also write laws that can get around that, or at least try to protect yourself from that. So, I don't think the government will—I mean it's famous last words with this administration, so maybe I shouldn't even say this—but I don't think that the, you know, they're just gonna be going willy-nilly after state emergency care laws, but that is an angle that could arise.

Jennie: Yeah. So like mentioning refusals, it makes me think back to, you know, even pre-Dobbs, the importance of making sure people were educated on what care hospitals could maybe refuse you. So like thinking through making sure people knew if they were going to a Catholic hospital, that that may be something that they could face at a Catholic hospital. I just remember you hear people, I'm sure you get this the same, right? Someone starts to tell a story of, I have a friend who is in labor and like, and I'm like, I'm gonna stop you right there. I already know where this is going.

Alexa: Exactly.

Jennie: And yeah, I just, it's so important that people know what their rights are and know what, what risks they may face when they go to certain hospitals as well.

Alexa: I think that's exactly right. And I think it's also really important for doctors, particularly residents, to know what they're going into when they start working at a hospital. Because a lot of people just assume that, well of course these abortions are gonna be allowed, right? This is not, you know, she's not just having the abortion because she wants one.

Jennie: Yeah, yeah.

Alexa: Which is a whole other problem. But you know, people assume that these abortions will be permitted and have been shocked to find when they have a patient before them that all of a sudden they're being denied the ability to treat them. So, I think that that's also something that's really important for people to do. And we are seeing that residents' medical residency applications are going down in abortion ban states for precisely this reason. Which ultimately means that the medical workforce in those states is going to decrease, right? Because the people who are providing emergency abortion care are also providing all other kinds of reproductive healthcare. They're providing gynecological care and they're providing obstetrical care to people continuing their pregnancies and they're not going to want to work in those states. I mean, Idaho itself has seen an exodus of OB-GYNs and maternal fetal medicine doctors who specialize in high risk pregnancies. So, the damage is really long term.

Jennie: I think the important thing also to remember is like this isn't happening in a vacuum. Like, this conversation is also taking place on the background of we are in a maternal mortality crisis particularly for Black women. So, this is all happening at the same time and we're already seeing increased maternal mortality in some states and assuming the states are still looking at it, 'cause a lot of them have then disbanded their maternal morbidity boards.

Alexa: Yes, I think you're exactly right. This is, these are not happening in a vacuum and we know that states that have had abortion restrictions in the past have always had worse maternal health outcomes. And now that we are seeing all out bans, that's only going to become worse. And obviously if you are prohibiting emergency care, that is going to lead to even more increased morbidity and mortality. And I think it all really just boils down to if any anti-abortion politician tells you that they can ban abortion but still protect pregnant people's health and lives, they're lying because no abortion ban can do that. Whether we're talking about emergency care or whether we're talking about other kinds of care, abortion bans undermine people's health and lives—full stop.

Jennie: Yeah, that feels like the perfect place to stop that 'cause that is absolutely true. Like we know, we've seen exceptions don't work. People are always gonna fall into those cracks where things aren't explicit. I think the last thing I would ask, and I think we already touched on a little bit of this, but what can the audience do to get involved?

Alexa: I think the audience, you know, if you're not already plugged into local reproductive health groups or local groups that work on this issue—again, local ACLU affiliates will work on this issue and there are many grassroots organizations in states that work on this. I think it's important to get plugged in because look, this is the first thing we've seen the Trump administration do. I hope it's the last, but you know, I don't think it will be. And so it's good to get connected now so that as these things keep happening, you are already connected to folks who are working on the response and you can much easier lend your voice or learn, you know, whether it's making calls, whether it's writing letters, whether it's lobbying local officials. It's good to get plugged in as early as possible so then, you know, and are able to mobilize as quickly as possible.

Jennie: Well Alexa, thank you so much for being here. I had a wonderful time talking to you.

Alexa: Thank you so much for having me. I had a wonderful time as well.

Jennie: I hope y'all enjoyed my conversation with Alexa and hopefully I didn't set off your Alexa too many times. As mine went off a couple times and enjoyed our conversation. I really did have a wonderful time talking to her about EMTALA and what is happening and just really lucky to have her on. So thank you Alexa. And with that, I will see everybody next week for our episode on the 50-state Report Card. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprosfightback.com. Thanks all!