How The Supreme Court Could Endanger Access to Emergency Abortion Care

The Emergency Medical Treatment and Labor Act, or EMTALA, is a statute passed by Congress in 1986 to ensure that nobody who is experiencing a medical emergency is turned away from receiving health care. But this week, the Supreme Court will hear arguments challenging EMTALA as it relates to emergency abortion care. Katie O’Connor, Director of Federal Abortion Policy at the National Women’s Law Center sits down to talk with us about the potential impacts of this ruling.

Under EMTALA, an emergency medical condition is defined “as a condition in which, without immediate medical attention, a patient's health or life is in serious jeopardy.” The statute does not make exceptions for state law, the personal beliefs of providers, or hospitals of religious affiliation. For pregnant people, abortion care can be a very necessary, time-sensitive, and sometimes life-saving health service. State-level abortion bans are already forcing patients to travel hours and long distances to receive care, and providers to leave the hostile states they are practicing in. EMTALA’s ruling may narrow, even more, the already constricted landscape that patients and providers find themselves navigating in the United States—especially for those who are experiencing an emergency.

Links from this episode

The National Women’s Law Center on Facebook
The National Women’s Law Center on X
Idaho v. United states and Moyle v. United States: the Supreme Court will decide if states can block pregnant people from getting emergency abortion care

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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.

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Hi rePROs! How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So today is my dad's birthday, which is still pretty bittersweet. As you know if you've been a listener for a while, my dad passed away last year so this is his second birthday since he has passed. Last year, my mom and I marked it by going to Jamaica for a week and spending time together, which was very lovely to, you know, be able to toast him on his birthday and to just spend some time together. I'm not gonna be there with her this year for his birthday or likely their anniversary, which is next month. But, you know, I will probably try to get home this summer to spend some time with her. But it, yeah, it's just like a little bittersweet to have another year without him. But I ordered something special for my mom. Unfortunately, she's not gonna get it today. It was a little delayed, but that's okay. She should have it soon, so just something a little special that I hope she enjoys. So yeah, that’s a little bit of where my head's at today, but I also have to give a presentation today, so it's in both places. Plus, getting ready for the Supreme Court case tomorrow on EMTALA. Ugh, so much happening, y'all. Let's see, what else? On fun news, I just ordered a bunch of stuff from Liberal Jane. Again, y'all, if you are not aware of her, make sure you are following her on social. Check out her store. She's got such cute stickers and, like, post- not, not like poster posters but wall art and patches and some pins. And I think she's got more other things that I have not bought, but just like a bunch of stuff. And it's all really cute and very related to sexual reproductive health, rights, and justice. I love all of her stuff. I order things like all of my notebooks have Liberal Jane stickers on them and I have a bag that's a rePROs bag from like, I don't know, like two times ago. We've gotten some fun new ones that I've talked about on the podcast before, but this is like one of the OG ones. It has our old logo on it and everything, but I've slowly been buying cute Liberal Jane patches as she has had them. And so, my bag has slowly become like a repro slash liberal Jane bag and it's really cute and it makes me happy carrying it around with all of the like pro-abortion and pro-trans stuff that are on it right now. So, very fun and just thank you Liberal Jane for all of the amazing stuff and y'all should definitely support Liberal Jane. They are wonderful. Yeah, so check her out. I think with that, let's just turn to this week's episode. It is a really important one. We are talking about tomorrow's Supreme Court case, which is on EMTALA. Don't worry, we'll talk about what EMTALA is and why you should care and why the case tomorrow is such a big deal because it is the second abortion case that we are hearing this term. And yeah, it's a really important conversation. So I'm very excited to have with me Katie O'Connor with the National Women's Law Center on to talk all about Tala and what this Supreme Court case is about. So let's go to my interview with Katie. Katie, thank you so much for being here today. Would you like to take a second and introduce yourself and include your pronouns?

Katie: Yes. Hi, I'm Katie O'Connor. I'm director of Federal Abortion Policy at the National Women's Law Center, and I use she/her pronouns.

Jennie: So, we are going to talk about the big Supreme Court case that is happening tomorrow, but before we talk about the case, I think we need to, like, take a step back and talk about what's at the heart of the case, which is what a lot of people may have heard a lot about EMTALA, but like what is that?

Katie: EMTALA is the easy name for the Emergency Medical Treatment and Labor Acts. This is a statute that was passed by Congress in 1986 to ensure that nobody who's experiencing a medical emergency can be turned away from receiving the care they need. And so under EMTALA, if a person is experiencing what the statute calls an emergency medical condition is seeking care at an emergency department that accepts Medicare funds, the hospital has to provide stabilizing medical treatment. An emergency medical condition is defined under the statute as a condition in which, without immediate medical attention, a patient's health or life is in serious jeopardy. EMTALA doesn't make any exceptions for, for a hospital's religious affiliation or physician's personal beliefs. And notably, it doesn't make exceptions and it applies regardless of contradictory state law. It says it explicitly in the statute. As you probably know, for pregnant people, abortion care can be an urgent and necessary stabilizing medical treatment. There are a number of conditions that pregnant people can be experiencing, complications that can pose a risk of severe blood loss or serious infections. And these conditions can really compromise a pregnant person's health or endanger their life. And so, in many of these situations, emergency abortion care is the only treatment that can preserve a person's health or save their life. And so we're talking about EMTALA right now because in our post-Roe world EMTALA's requirements provide really important protections for pregnant people who are facing medical emergencies, especially in states with abortion bans.

Jennie: I mean, it just seems so basic, like it's so wild to me that this is the bar we're fighting over 'cause again, it's like the bar is in hell, right? Like, we are just saying don't let people die or put their health at risk. Like, treat them. It's just like, isn't this why you went into healthcare?

Katie: Yeah, so totally agree. I keep thinking it's not surprising that we now know that anti-abortion activists are going to this sort of horrifying new low. I think it's just surprising how quickly it's happened, how quickly over less than two years, the whole thing has unraveled. And we're sort of, like, seeing the anti-abortion movement for the cruel and sort of inhumane movement that it really is. It's the quickness with which that happened that is surprising to me.

Jennie: Okay, so now that we know what EMTALA is, how did we get to this, like real basic, "don't let people die and put their health at risk" being challenged by the Supreme Court, like also wild?

Katie: Yes. In July 2022, in the immediate aftermath of Dobbs, the Department of Health and Human Services issued guidance to federally funded hospitals just reminding them of their obligations under EMTALA and making clear that EMTALA would continue to protect a pregnant person's right to an emergency abortion care where that's the necessary stabilizing treatment. So, this was nothing new. This was just the HHS sending out a reminder that EMTALA still applies regardless of what happened with Roe. Idaho, meanwhile, passed in actually in 2020 a so-called "trigger ban" that would go into effect two months after the Supreme Court overturned Roe v. Wade. This ban is one of the strictest in the country. It bans all abortions except those that are necessary to prevent the death of the pregnant person. It also accepts terminations of ectopic pregnancies and of pregnancies that result from rape or incest in the first trimester and that have been reported to law enforcement. I think it's worth noting here that this is actually a marginally less strict ban than was originally passed by the Idaho legislature. The original ban actually didn't include an exception for ectopic pregnancies. That to me is just evidence of how little politicians understand about pregnancy and all the complications that come with it. But the other thing that was much stricter about this ban when it was originally passed is that at first the exception for abortions to prevent the death of the pregnant person, that was just an affirmative defense. So, that means a prosecutor could still prosecute a doctor for providing abortion care and the doctor could use the person's impending death as an affirmative defense in court that is now fully an exception. So, doctors don't get dragged to court if they're able to find ways to, you know, provide care under this very narrow exception. So, that is the Idaho law, and we had already the Department of Justice setting up that it was going to continue to enforce EMTALA despite abortion bans. So, the Department of Justice sued Idaho in early August of 2022. This was just before the Idaho abortion ban was meant to go into effect. And the Department of Justice argues that to the extent that the Idaho abortion ban conflicts with EMTALA, it is preempted by federal law. So, in short, the argument is that Idaho's law only allows for abortion when a person's life is at risk. But EMTALA protects a person's right to abortion care whenever it's necessary to protect their health. So, there are circumstances in which EMTALA a would require a hospital to provide emergency abortion care, but the Idaho abortion ban would prohibit that care. And in those circumstances, federal law must preempt the state law. That is how our system of government works. That's what the supremacy clause that the constitution's all about, and that's what the Department of Justice is arguing at the Supreme Court. So, the case was filed in August of 2022, and the district court did rule for the federal government and put the Idaho ban on hold to the extent that it conflicts with EMTALA. But Idaho quickly went to the United States Court of Appeals for the Ninth Circuit. A panel of three judges on the ninth Circuit reversed that district court decision and allowed the ban to be enforced. But shortly thereafter the Ninth Circuit, what we call en banc, which is like a much larger panel of judges once again reversed putting the law on hold to the extent that it conflicts with Tala at that point. Notably Alliance defending Freedom got involved to represent Idaho and the Supreme Court intervened. It was rather extraordinary that the Supreme Court intervened at this point because the Ninth Circuit hadn't ruled on the merits at all. So, the Supreme Court really just jumped right over the Ninth Circuit to take this case. And it was also surprising that the Supreme Court allowed the Idaho abortion ban to be enforced even in cases of emergency medical complications while the case is being litigated. But that's where we are. And the Supreme Court will hear oral arguments in the case tomorrow.

Jennie: This, like only allowing abortion when somebody is almost dead is wild. It's just like this giant game of chicken, like how close to death is okay and, like, this is how people die. Like, I just, it is mind boggling to me.

Katie: Yeah, that's right. And I mean, you know, I think it's worth mentioning, so obviously the impacts of this case are, there are a lot of impacts, but I wanna talk about too in particular, obviously one being the impact that this has on patients. What we know is that abortion bans are forcing people with pregnancy complications, really dangerous pregnancy complications, to travel for hours, often crossing state lines to access the care that they need after being turned away from their local hospitals. And we also know that the effects of these abortion bans fall hardest on people who already faced discriminatory barriers to care, so people of color, young people, people with low incomes. But it's also worth noting and what we're now seeing is that abortion bans are also forcing providers to leave the states that have enacted them because of how ethically fraught their work has become under such restrictive laws. So, a good example is that in March 2023, an Idaho hospital serving roughly 9,000 people announced it would be closing its maternity ward due in part to the legal and political climate of the state. And reports show that more than half of all providers who specialize in high-risk pregnancies were expected to leave the state by the end of 2023. You know, we know this country is experiencing a maternal morbidity and mortality crisis and these abortion bans are just making that worse by creating and expanding care deserts where there are no OBGYNs who can provide the care to people who have, you know, complications during pregnancy.

Jennie: Yeah. There's something especially dark about this case happening just at the end of Black Maternal Health Week. Like there's just something, I don't know. Yeah, extra, like, just shoving the knife in, I don't know, it just seems extra terrible.

Katie: Yeah, it really does. It's shocking that we're here. It's shocking to hear the arguments that are being made from the other side. You know, I I feel like the other side is constantly sort of talking out of both sides of their mouth. On the one hand, a good example of this is what has happened in Texas with Attorney General Ken Paxton, you know, on one hand, like trying to blame doctors for not taking advantage of what he would probably argue is a very sort of generous exception to the abortion ban. It's doctors' faults that they're not providing this lifesaving care.

Jennie: Right.

Katie: And you know, in the same sentence turn and say like, but we will prosecute you to the full extent of the law if you violate it. So, I don't know how, to be honest, anti-abortion activists, you know, live with themselves after we've seen, you know, sort of the devastation and of course we always wanna be talking about like the need for abortion care access more broadly, but there's so little disagreement when it comes to emergency abortion care. And so, it's shocking that there are still people willing to fight against it.

Jennie: Right. This is the hill you wanna die on.

Katie: Right. And that's why honestly it was surprising to me that the Supreme Court took this case instead of at least letting it be litigated in the Ninth Circuit first.

Jennie: So that makes this the second abortion case that the Supreme Court is hearing this term. And again, I'm very nervous as to what we are going to see. What are some possible things we could see with this case?

Katie: This case is a little tricky to predict. I think I will admit that people are not super hopeful about what the court's gonna do, but I think that there are a number of ways that the court could rule here and hopefully they rule in a way where we can fix the issue with EMTALA so that the federal law continues to be, you know, supreme to state laws and continues to protect emergency abortion care where it's necessary to stabilize a person who's in crisis.

Jennie: Yeah, I'm not gonna lie, I'm nervous.

Katie: Yeah, I, it's, I mean it's also of course ironic that less than two years after the Supreme Court said like, look, we're just getting out of the business of abortion altogether. We're just sending it back to the states. Like I said, it's just surprising how quickly it's all unraveled and it's surprising that we're now back at the Supreme Court with two cases about abortion, but here we are.

Jennie: I think this, like, kind of goes back a little bit to what you talked about originally when you were on the podcast, which is, like, refusals and stuff. I feel like that came up a lot during the mife case with like conscious objections and kind of conflating all of this together with like EMTALA and conscience and the mife stuff. Can you just maybe like do some clarifying work here as to how this does and doesn't apply in these cases?

Katie: Sure. So, I think in the mife case, well I know in the mife case, the conscience objections applied because it sounds like the Supreme Court's likely to rule in that case based on what we call standing, right? So, like, do these doctors and dentists...

Jennie: Yeah. Cannot forget the dentist.

Katie: Don't forget the dentist. Are they actually experiencing an injury that a court can address? Because that's what's required by the constitution. You have to be able to express that you're experiencing an injury that the court can redress. And so, ultimately, they had a bunch of different theories for how they might have standing in this case. But the Supreme Court seems to be boiling it down to: are there individual doctors who are harmed by the existence of mifepristone in this country? And yeah, essentially what the Supreme Court, what it seems like the justices were saying was the only real way the doctors would be harmed by the mere existence of mifepristone, assuming these doctors aren't, you know, prescribing mifepristone would be...

Jennie: [Sigh]

Katie: I mean same, same. But you know, the only way that they would be harmed by the existence of mifepristone is if they are sort of emergency providers and someone came into the emergency room with a complication from the mifepristone. So, that is why and what the court was trying to get at, what some of the justices at least were trying to get at, was that there are already conscience protections so that, you know, hospitals are supposed to make it where if a doctor is opposed morally or religiously to some sort of care, that that doctor doesn't have to provide that care and the hospital will make other arrangements for it. So that's why conscience protections were such an issue in the mifepristone case. There is no reason for conscience protections to be part of the EMTALA case. I mean what we're really talking about is, like, a hospital's obligation to provide stabilizing care. So we're not talking about an individual doctor's obligation and we're not even talking about doctors who have conscience objections. We are just talking about what a hospital that accepts federal funds is expected to provide to people who show up at their emergency department. So, we very much hope that the Supreme Court doesn't get hung up on the conscience stuff during EMTALA oral arguments because it is not immediately relative in this case.

Jennie: Yeah, it just felt worth clarifying 'cause all of that during the mife arguments was like all getting brought together as one, like, bundle. So, I do have a little fear that we're gonna see a little bit of a repeat of that during the EMTALA arguments around conscience. So, it was good to have clarity on why it does not apply here.

Katie: Yes, as I said, we hope that it does not come into this case because it doesn't need to. This case can be decided, like, basically on the statutory text of the law, you know. That being said, given that they explicitly brought up EMTALA during the mifepristone argument in the context of conscience protections, I am not going to be surprised if they bring it up again tomorrow.

Jennie: Okay. So, we don't really know how this is gonna shake out. We'll find out later in the year or in the summer...year, I wish, right? No, we'll find out in June. I guess that just leaves me to think, like, EMTALA was broader than just abor- it's not just abortion. Is there any way that this ruling would have broader implications beyond just abortion? Like, it was passed for a real reason addressing real concerns beyond abortion care that it makes me nervous around those too, that we could see problems rise up again with turfing?

Katie: Yeah, yeah, I mean I will, I will first just address, like, what we, what I view as the purpose behind EMTALA. One of the things that our opponents are trying to argue is that EMTALA is just about patient dumping. It was just about hospitals, you know, trying to turn away a patient or transfer a patient to some other hospital when the patient didn't have health insurance or the ability to pay for the care. But that's not what the legislative history suggests. It suggests that it was, yes it was about addressing that particular issue, but it was also about making sure that hospitals with emergency departments were providing a baseline of care because there was evidence in the record that they weren't at that point. So, EMTALA is about both of those things. Like, you can't turn away a patient and you also have to provide the basic care that they need, which again, in this case is abortion. I forgot your question, sorry.

Jennie: No, I was just, like, if it was to be expected, ruling to be narrow enough that it would only apply to abortion or could it cause some of those broader problems to open back up again?

Katie: If I had to predict, I think this is yet another example where the Supreme Court's going to find that abortion is just unlike anything else, is going to take abortion completely out of the context of healthcare altogether. We know that abortion is healthcare, but this Supreme Court is likely to treat it as something altogether different. And so, to be honest, I doubt that this case is gonna have many ripple effects beyond just abortion care. If there are other types of care that are necessary to treat emergency medical conditions and that are objectionable to some doctors, then of course this opens the possibility for those doctors to seek to deny that care. But I just can't think of anything that people would argue is equivalent and that the Supreme Court would agree is equivalent. This is just another case about writing pregnant people and pregnancy and abortion out of healthcare altogether.

Jennie: A little bit of a, like good news, bad news thing. Like, it won't get worse for everything else, but like we'll further stigmatize and separate abortion as separate, which is how we got into this mess in the first place.

Katie: Yes, exactly. I was gonna say, I mean I also, I really think it's important to stress again that, like, EMTALA has always protected pregnant people in medical emergencies. This is nothing new. One of the arguments that's being made by Idaho and other red states is that this is something that the Biden administration manufactured as a way to turn hospitals, federally-funded hospitals into abortion clinics. And that's just not true. There's plenty of evidence that throughout EMTALA's 40-year existence, it has always been understood that when abortion is the necessary stabilizing care, it is required to be provided under EMTALA. So, for what it's worth.

Jennie: For sure, yes, we did not touch on that where they did act like the, the Biden reminder was, like, this brand new thing, but like yeah, we have seen problems where the hospitals had like denied care to pregnant people who needed help before all of this where you saw EMTALA brought up in these conversations for years.

Katie: Yes, it's always protected abortion care and, you know, that argument from the opposing side is wrong on two fronts. I mean, first of all, like, one of the arguments that the opponents of EMTALA here are making is that this is like the Biden administration having made a new rule and that's not true. I mean what they're doing is just enforcing the text of the statute, you know? So, there's just no, there's no basis for that particular argument that the Biden administration is making a new rule and there's certainly no basis for the textual argument that the rule, you know, the law doesn't say what it says because it does and it clearly applies to protect pregnant people when they need emergency abortion care.

Jennie: Well, hopefully arguments go well, we get a good ruling. I will be nervous until we have a ruling, but we always like to end with, like, a little bit of hope or action items. So, what can people do right now? I know I will be there at the court tomorrow, but not everybody can do that.

Katie: Yeah, well I was definitely gonna say if you are in the DC area or can be in the DC area, please do come down to the Supreme Court. We'll be out in front of the court by about 9:30. We have some really great speakers lined up and some music and we'll hear from people who have listened to the oral argument and hear how that went. So, I do hope to see many people there. And then I think, I think the good thing about all of this emphasis on emergency abortion care and pregnancy complications and stuff is that that has made it a lot easier for people to talk about their own experiences with pregnancy loss and their family's experiences with pregnancy loss and their family's experiences with abortion. And so, I think keep having those conversations. The only other thing I will say is that these cases are obviously really important and that's why the National Women's Law Center and I have put in a lot of time and effort into this EMTALA case. But we also know that, like, abortion access has to be about much more than just this bare minimum. This case is about we really are begging for scraps in this case. And so, whenever we talk about the need for access to emergency abortion care, I think we also need to talk about the need for access to abortion no matter what. What we have learned in the past almost two years since Dobbs, and I think we knew it before then, is that politicians don't know what they're doing when they try to legislate pregnancy and pregnancy loss and abortion. And it's those, the failure of laws to understand what pregnancy is really like, and that each pregnancy is unique that lead us to the obvious conclusion that politicians have no right to be in this space at all. There's no space for politicians in the provision of healthcare, including abortion care. And so, whenever we can talk about what this means for the broader movement for abortion access, not just in emergency situations, but more broadly, we should be talking about that.

Jennie: Absolutely. Oh, that's a great place to end 'cause it's, we need to focus on all the things and get politicians out of the doctor's office, man.

Katie: Exactly.

Jennie: Well Katie, it was a pleasure talking to you. Thank you so much for being here.

Katie: So good talking to you and thanks for having me.

Jennie: Okay y'all, I hope you enjoyed my conversation with Katie. I had a great time talking to her. She'll be probably back this summer to talk about what happened in the case, so that way we will follow up to see how this Supreme Court ruled. I'm not gonna lie, I am pretty nervous, but that's, I just, I'm always nervous now when anything around rights comes up in front of the Supreme Court. So, not gonna lie. Not good. And yeah, with that I think we'll just wrap it up and I will see y'all next week. [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 reprofightback.com. Thanks all!