The Biden administration has tried with mixed success to use a federal law to preserve abortion access in medical emergencies. The Supreme Court this month could make that work much harder.
The administration has been telling hospitals that they’re required to perform abortions when a patient’s life or health is threatened — even in states with bans. But doctors, health care lawyers and abortion-rights groups say the president’s strategy has had limited impact, as many red states threaten doctors with prison for providing such abortions.
Republicans in Idaho asked the Supreme Court to decide whether state bans or federal law take precedence. But the ruling, which could come as soon as Thursday, is unlikely to be the final word.
Physicians and legal experts told POLITICO that the fear of state and local prosecution will keep many medical providers from listening to the Biden administration — even with the blessing of the Supreme Court. While a favorable ruling could give some physicians comfort, it won’t be enough to shift the paradigm that has seen a growing number of patients transferred out of state in medical emergencies.
“Some of these hospitals would rather be seen as denying care to a patient than providing an abortion that maybe was potentially illegal,” said Emily Corrigan, an OB-GYN based in Boise, Idaho. “Often the federal enforcement is just a fine. It’s not losing your license. It’s not jail time. It’s not lawsuits from family members [of patients].”
A ruling for Idaho Republicans would allow the state to continue barring most emergency abortions, and it would likely prompt other states with abortion bans to challenge the federal patient protections.
Conservatives acknowledge that hospitals have turned away pregnant patients in emergency situations, but they argue the problem is overly scrupulous — or politically motivated — physicians rather than state policies. They say a Supreme Court ruling for the Biden administration would create an easily exploitable loophole for physicians who want to perform abortions in non-emergency situations, allowing them to hide behind the threat of losing significant sums of federal funding.
Erin Hawley, senior counsel at Alliance Defending Freedom, said those financial penalties are “quite severe for both doctors and hospitals.”
“It would mean that they’re not able to participate in Medicaid and Medicare. I don’t know of many hospitals — or of any — that are willing to give that up,” she said. “I don’t think doctors, and certainly not hospitals, are going to risk that.”
The Biden administration has vowed repercussions for hospitals that turn pregnant patients away or send them out of state during a life- or health-threatening emergency, released materials to train doctors about their obligations under federal law and created a portal for pregnant patients to report violations. The administration has also publicized a handful of its investigations into hospitals for noncompliance, including one in 2023 focused on a hospital that turned away a patient whose water broke at 18 weeks, putting her at imminent risk of infection and hemorrhage.
But following stories over the past two years of pregnant patients being airlifted to another state while miscarrying, asked to wait in a hospital parking lot for their vitals to crash or suffering permanent harm to their health and ability to conceive after being denied an abortion, medical leaders say the administration’s meager enforcement of the federal law at issue, known as the Emergency Medical Treatment and Labor Act, or EMTALA, is partially to blame.
“It should, in our view, be more aggressive because people aren’t getting care,” said Molly Meegan, the chief legal officer for the American College of Obstetricians and Gynecologists. “The ramifications of an EMTALA violation can be huge — you can lose Medicaid and Medicare reimbursements. But I haven’t seen any hospitals lose their actual funding.”
The White House declined to share how many EMTALA violations have been reported since the court’s Dobbs v. Jackson Women’s Health Organization decision, how many the administration has investigated, how many facilities were found to be out of compliance and what happened to those facilities.
Jen Klein, the director of the White House Gender Policy Council, said the administration “will continue to work with doctors and hospitals to help ensure that every patient receives the emergency medical care required under federal law.”
HHS Secretary Xavier Becerra in a statement said his agency will “continue to uphold federal law and the right to emergency care.”
“HHS is committed to protecting every American’s ability to access emergency medical care – and taking appropriate steps when that care isn’t provided,” Becerra said. “Doctors should determine what care is needed, not politicians.”
An Associated Press investigation earlier this year found that EMTALA complaints more than doubled in the months following the Dobbs ruling compared with the months leading up to it. And in some cases, the administration has opted not to intervene.
While facilities that violate EMTALA can be fined or stripped of their Medicare and Medicaid funding, experts said that it’s more common for federal agencies to work with hospitals to bring them into compliance — if they act at all.
Meanwhile, aggressive state enforcement of abortion bans is more visible. No physician has faced criminal charges for providing an abortion in a state that bans the procedure, but doctors told POLITICO that the fear of becoming the first “test case” deters many from offering care they believe is medically necessary.
“All it takes is one attorney general or one politician saying, ‘Oh, I disagree,’ and wanting to make a statement,” said Nisha Verma, a fellow with Physicians for Reproductive Health and OB-GYN based in Atlanta.
Verma said she has worked with physicians across Georgia to explain the federal law and how it can be applied in a state with strict anti-abortion laws. Still, she said, her hospital has received many patients who were denied emergency abortions at other facilities — including some who were severely bleeding and at high risk of infection.
“The fear of state criminal prosecution is higher,” she said. “[EMTALA] just feels like a less present threat.”
In Idaho, those worries have spurred a mass exodus of physicians, particularly OB-GYNs who don’t feel safe practicing under the state’s ban.
Corrigan said the Supreme Court’s decision when it took the case to block a lower court ruling protecting doctors’ ability to provide emergency abortions has prompted hospitals to send many more patients across state lines — which she said is both emotionally traumatic and medically risky. She said it can take upward of nine hours, including multiple ambulances and a plane flight, to get patients to a facility that will treat them in a neighboring state.
“Meanwhile, their emergency condition is progressing. So you have to sit there and think, ‘Are they going to deliver in the airplane?’ That would be the most horrific thing,” said Corrigan, who leads the state’s chapter of the American College of Obstetricians and Gynecologists. “Imagine they’re alone, and they’re delivering a pre-viable fetus at 30,000 feet and then they start hemorrhaging. There’s no blood bank. There’s no OR.”
During oral arguments in the EMTALA case in April, the solicitor general cited testimony from one Idaho hospital that reported airlifting pregnant patients out of state about once every other week — a situation she called “untenable.”
Corrigan, Verma and other doctors operating in states with bans said that despite EMTALA’s limitations, a Supreme Court ruling for Idaho would strip them of one of the last remaining protections they have as they work to care for pregnant patients in crisis.
“It just sends a message that states can decide whether or not to provide emergency care,” said Verma. “So even though I think EMTALA needs more teeth, it will still be devastating and would move us backwards.”
Conservatives counter that a ruling against Idaho will allow the Biden administration to force doctors to perform abortions in non-emergency situations.
“They would absolutely go after hospitals that wouldn’t perform elective abortions in emergency departments,” said Roger Severino, a former Trump administration official and vice president of domestic policy at the Heritage Foundation.
No matter how the high court rules, medical groups say there will continue to be widespread fear and confusion in states with abortion bans about whether and when they can treat patients in emergencies, noting that the stories of Texas patient Kate Cox and Indiana OB-GYN Caitlin Bernard have especially fueled the chilling effect.
Cox was denied an abortion her doctor said was medically necessary after the state’s Republican attorney general threatened to prosecute — even though a state judge had ruled that Cox qualified for a medical exemption. Bernard, meanwhile, was investigated by the state’s Republican attorney general and threatened with prosecution after providing an abortion to a girl while her state’s now defunct six-week ban was in effect.
Doctors and patients in several states have petitioned legislatures, courts and medical boards to clarify how sick patients have to be to receive abortions but have received little to no guidance.
The Texas Supreme Court on Friday ruled against 20 women who suffered pregnancy complications as a result of the state’s near-total abortion ban. The court ruled the law was clear enough as written and overturned a lower court ruling allowing the procedure when doctors deem it necessary in their “good faith judgment.”
“You have penalties that are beyond life-changing — up to life in prison, huge fines, the loss of your medical license — all in the context of not only the ability to be second-guessed, but proof that they will be,” said Meegan, adding that the Cox case has further eroded trust in EMTALA by providing “a really concrete example of the law not protecting the doctors.”
Amanda Smith is a dedicated U.S. correspondent with a passion for uncovering the stories that shape the nation. With a background in political science, she provides in-depth analysis and insightful commentary on domestic affairs, ensuring readers are well-informed about the latest developments across the United States.
