In Defense of Life

Welcome to Gilead

There's a reason Margaret Atwood, author of The Handmaid's Tale, set Gilead in the United States instead of her native Canada. America has a long history of sexism and misogyny. Studies show the MAGA movement draws on those deep seated feelings of contempt. One study shows that voters’ measures of hostile sexism and actual racism correlated much more closely with support for MAGA than economic dissatisfaction after controlling for factors like partisanship and political ideology:

Another study found that measures of chivalrous sexism — more traditional, views of women and men’s proper roles in society — didn’t correlate closely with support for Trump. But measures of hostile sexism did. This suggests that MAGA sexism is more about hostility toward women than old-fashioned views of gender roles. That seems to correlate with how the conservative extremist justices on the Supreme Court see women.

Idaho vs. United States

The Supreme Court just posted their non-decision on Idaho vs United States. The case involved an abortion ban so strict it criminalized what federal law requires. Whenever that happens, the Constitution’s supremacy clause says federal law wins: Under what’s known as the preemption doctrine, federal law is the “supreme Law of the Land” and overrides any conflicting state law. However, at least six states have abortion bans so restrictive they conflict the Federal EMTALA Act.

What’s EMTALA?

Hard to believe now, but when I was a kid there were no EMTs and hospital emergency rooms were staffed by moonlighting general practitioners, family practice docs, internists, and residents.  In 1966, research showed that soldiers in the jungles of Vietnam had better survival than traffic accident victims in Claifornia. By 1970, then Govenor Reagan signed a law allowing mobile paramedics to do certain medical procedures in California.

 

Miami, Florida; Seattle, Washington; and Los Angeles, California started experimenting with training fire fighters to provide stabilizing care before transporting patients to the hospital.  The concept was so new, a dramatic TV show (Emergency!) helped pave the way to public acceptance. In 1971-1972, new medical residency programs trained doctors specifically to deal with all types of Emergency Room conditions.

In the early eighties, private hospitals sent patients, particularly uninsured patients in labor, to the doors of other hospitals. Providing care for pregnant patients was expensive and hospitals were unlikely to receive any compensation if the patient didn't have insurance. They often used taxis or told the patient’s family to drive the patient to a public or county hospital. The practice was called “patient dumping.” As you might imagine, the delay in care harmed or even killed some patients. This forced Congress to outlaw the practice. 

On April 7, 1986, Ronald Reagan signed The Emergency Medical Treatment and

Labor Act (EMTALA) into law. From that point on, anything calling itself an “emergency department” needed to provide an emergency medical screening examination to anyone who came to the hospital regardless of race, sex, citizenship, or ability to pay. If an emergency medical condition is detected then the law requires hospitals to provide “necessary stabilizing treatment” to the patient.

EMTALA defines medical emergencies as a condition "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.” 

If the hospital can’t care for a patient, the hospital must stabilize and then officially transfer the patient. A legit transfer includes a doctor-to-doctor report, the receiving physician formally accepting the patient, and transportation in an ambulance or medical airlift—no more telling the patient’s family to take her in a taxi to St. Elsewhere. 

EMTALA provided the lowest standard a hospital needed to call itself an emergency room. EMTALA, EMT training, and Emergency Medicine residency programs changed the face of emergency medicine into a modern practice. In time, more regulations created the system we have today--patients can rely on the urgent care they receive anywhere in America. EMTALA was America's only universal right to healthcare until the ACA.

Idaho In A Post-Roe World

Dobbs overturned Roe v. Wade in June of 2022. Idaho’s “Defense of Life Act” became law in August 2022. The Act is one of the strictest abortion bans in the US. It bans any medical treatment connected with the termination of the life of a fetus unless the mother is actively dying from the pregnancy; even if it ultimately harms the mother and prevents her from getting pregnant in the future, even if the fetus cannot survive outside the womb, even if the fetus is ultimately doomed without any procedure. 

Idaho’s “Defense of Life Act” requires physicians to guess when a woman is about to die and only allows intervention at that point. Every time an abortion is performed, the facility needs to report it to the state for review. Failure to wait until the woman’s life is sufficiently endangered can lead to being found guilty of a felony, loss of state licensure, heavy fines, 2-5 years in prison. 

Six states have abortion bans without exceptions for the health of the mother. The other states are South Dakota, Texas, Oklahoma, Arkansas and Mississippi.

The Federal Department of Justice sued Idaho, alleging EMTALA preempts their state law. A district court agreed, issuing an injunction requiring Idaho to allow abortions when a patient’s health (but not necessarily her life) was in jeopardy.

 Idaho’s State government argued the injunction would cause irreparable harm.  Emergency rooms would function as “federal abortion enclaves governed not by state law, but by physician [and patient] judgment, as enforced by the United States’s mandate to perform abortions on demand” and “threate[n] religious healthcare providers” by forcing doctors and hospitals to perform abortions regardless of conscientious objections. 

Idaho asked the Supreme Court to intervene and provide an “abortion exemption” from the federal EMTALA law. 

Physician Felons

Can you tell when a person is about to take their last breath? Not after they stop breathing all together, but before that very last breath. That is what some doctors are being asked to do in states with the strictest abortion bans. 

“It’s not harmless to wait until the brink of death to intervene in emergency

medicine,” said emergency room physician Dr. Dara Kass at Columbia University Medical Center. “Having to wait until that window to intervene is dangerous for people… [and] will have consequences to your life and future fertility and organs and a lot of other things.”

Abortion bans place healthcare providers in an impossible position— facing “dual loyalty” dilemmas that cause them moral distress. Save the life and health of your patient and risk losing your license, becoming bankrupted by civil penalties, and facing imprisonment. 

One maternal-fetal specialist in Louisiana put it this way:

Our attorney general, Jeff Landry, sent us all a letter saying, ‘I will put you in jail if you break these rules.’ Literally, I am out to get you, so don’t break these rules. So, you do feel a little bit like there’s a target on your back because you want to do what’s right for the patient. And these aren’t situations that happen infrequently, these aren’t clinical scenarios that happen once a year. They happen all the time. Every time I’m on call, I have a patient that’s considered to potentially be in a life-or-death situation.—(Criminalized Care Study, Louisiana)

In the first fifteen months after the Idaho ban went into effect the state lost 22% of its practicing obstetricians and 55% of its high-risk obstetricians. At least two Idaho hospitals closed their labor and delivery units in 2023. Idaho is creating obstetrical deserts, large rural swaths of the state without any obstetrical care. 

Dangerous for Women

Jaci Statton, a 27-year-old in Oklahoma, had a partial molar pregnancy last year — a type of pregnancy that is not viable. Despite being too nauseous to eat and at risk of hemorrhage, hospital staff would not give her an abortion. She lived too far from the hospital to wait at home.

Oklahoma Children's Hospital staff "were very sincere, they weren't trying to be mean," Statton told NPR last year. "They said, 'The best we can tell you to do is sit in the parking lot, and if anything else happens, we will be ready to help you. But we cannot touch you unless you are crashing in front of us or your blood pressure goes so high that you are fixing to have a heart attack.'" She later filed a federal complaint against the hospital, but it was rejected.

“…I’ve always been pro-life — I didn't even know there was a gray area that existed,” she says. “A lot of people, and especially in the more conservative states, I don't think that they know there is a gray area. I think they think it's very black and white. It's either good or it's bad. I think a lot of people should be educated more about these types of things," like molar pregnancies, ectopic pregnancies, and serious genetic fetal anomalies.

She said state lawmakers dismissed what happened to her, which makes her angry. "Oklahoma is a very proud state that they're abortion free, and I'm like, 'Yeah, that's really like good for a pro-life [state] but at what expense to the people in need?’”—OPB

Pregnancy in the US is ten times more lethal than in other high-income countries. Indigenous women face a mortality rate twice as high as white women and for black women, the mortality rate is three times that of white women. A study in 2020 revealed a 62% increase in maternal death in states with abortion restrictions compared to other states. Abortion bans alone cause close to a 25% increase in maternal mortality.

Idaho, and five other states, are trying to create a female apartheid zone.

SCOTUS Does a Six-Month Tap Dance

The Supreme Court halted the Ninth Circuit injunction against the Idaho abortion ban before the appeals court issued a decision on the merits of the case. As soon as SCOTUS intervened, Idaho doctors started airlifting pregnant patients every other week (as opposed to once a year) to neighboring states to obtain emergency abortions.

Idaho’s attorney, Joshua Turner, argued before the Supreme Court that women experiencing pregnancy complications have no federal right to medical care unless they are dying. Idaho argued that doctors must ignore federal law, for pregnant patients only, and wait until a patient’s condition deteriorates to the point where the woman is on the verge of death before they can intervene. 

Six months after taking the extreme step of pre-empting the lower courts, a 6-3 vote punted the decision back to the Ninth Circuit unchanged. For the moment, the injunction will go back in place, and doctors in Idaho can give women the care they need without being arrested.

Justice Amy Coney Barrett penned one-half of the majority opinion which Justices Brett Kavanaugh and John Roberts joined. They wanted to dismiss the case, sending it back to the appeals court, essentially acting as though the last six months of SCOTUS intervention never happened.

The Court’s three Democratic appointees, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson agreed that EMTALA means what it says, but they disagreed about a course of action.

In her half of the majority opinion Justice Kagan wrote, “EMTALA unambiguously requires that a Medicare-funded hospital provide whatever medical treatment is necessary to stabilize a health emergency—and an abortion, in rare situations, is such a treatment.” 

She goes on to explain, “The statute does not list particular treatments—for example, defibrillation, blood transfusion, or mechanical ventilation. What it instead requires is the treatment that is medically appropriate to stabilize the patient. And when a pregnancy goes terribly wrong, that treatment may be an abortion. Termination of the pregnancy (which is often of a non-viable fetus) may be the only way to prevent a woman’s death or serious injury, including kidney failure or loss of fertility.”

Sotomayor and Kagan agreed to join Barrett’s effort to send the case back to the Ninth Circuit appeals court only if the original injunction was reinstated and doctors could use their discretion about whether to perform an abortion in medical emergencies. 

Unfortunately, this does nothing for women in the other five states with strict abortion bans. Justice Jackson wanted to decide the case against Idaho and for EMTALA to prevent the same case from coming before the Court again with another state’s ban. In her separate opinion, she wrote: 

We cannot simply wind back the clock to how things were before the Court injected itself into this matter. Our intervention has already distorted this litigation process. We permitted Idaho’s law to go into effect by staying the District Court’s injunction in the first place, then allowed this matter to sit on our merits docket for five months while we considered the question presented. It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes: The Court has made this bed so now it must lie in it—by proceeding to decide the merits of the critical pre-emption issue this case presents.
 
The parties were well represented on both sides, and dozens of amici have weighed in. What is more, the necessary legal reasoning is straightforward, and the answer to the question presented is—or at least should be—quite clear: Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause, Idaho’s law is pre-empted.

There is simply no good reason not to resolve this conflict now.

Today’s decision is not a victory for pregnant patients in Idaho. It is delay. While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.

Jackson, however, did eventually agree to join the majority and dismiss the case back to the lower courts.

That leaves Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas. Alito wrote their dissenting opinion which largely throws women under the bus. He wrote that Idaho’s ban may require doctors to stand by and wait for a pregnant patient to develop “infection and serious risk of sepsis” before terminating a failing pregnancy. 

Alito points out that the arguments before the Court were extensive and time-consuming. 

In addition to the parties’ briefs, we received 46 amicus briefs, including briefs submitted by 44 States and the District of Columbia; briefs expressing the views of 379 Members of Congress; and briefs from prominent medical organizations. Altogether, we have more than 1,300 pages of briefing to assist us, and we heard nearly two hours of argument.

That question is as ripe for decision as it ever will be.

 Alito buys Idaho’s complaint that they have been harmed but ignores the harm done to women.

‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’

By requiring Idaho hospitals to strike a different balance, the preliminary injunction thwarts the will of the people of Idaho as expressed in law by their elected representatives.

Alito presents a three-part argument. 1.) The circumstances in which EMTALA was passed, the language included in EMTALA, and the President who signed it into law were not trying to guarantee abortions. 

President Reagan was known to be staunchly pro-life. Congress at the same time it considered EMTALA also passed the Hyde Amendment which prohibits federal funds from paying for abortions. The text of EMTALA does not mention abortions and takes care to consider the life and health of the fetus.

At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm.

Thus, if the hospital identifies an emergency medical condition threatening the child, it must “stabilize” that condition to ensure that the child’s health does not remain in “jeopardy.” It goes without saying that aborting an “unborn child” does not protect it from jeopardy.

Similarly, if a hospital wants to transfer a pregnant woman to another facility, it may not do so unless, among other things, a physician certifies directly or through an intermediary that the medical benefits of transfer outweigh any “increased risks” to the woman “and, in the case of labor, to the unborn child.” Thus, regardless of whether a hospital chooses to treat or transfer a pregnant woman, it must strive to protect her “unborn child” from harm.

2.) The fact that a patient can choose to decline a treatment, does not infer that another patient may demand the same therapy.

…the right to refuse medical treatment without consent does not entail the right to demand treatment that is prohibited by law. Cancer patients have the right to refuse treatment that their doctors recommend, but they do not have a right to obtain whatever treatment they want, such as the administration of a drug that cannot legally be used in this country. Likewise here, a woman’s right to withhold consent to treatment related to her pregnancy does not mean that she can demand an abortion.

3.) EMTALA is a Spending Clause legislation. Congress holds the government’s purse. It decides where to spend your tax dollars. It can attach strings to any federal funds received. But those receiving money can opt out of any spending programs if they disagree with the conditions. Spending Clauses act more like contracts where each side knows exactly what is expected and how much money will change hands. Therefore, Alito argues:

Because the enforcement of conditions attached to the receipt of federal money depends on a recipient’s knowing and voluntary consent, “the conditions must be set out ‘unambiguously.’ ” And recipients must be given a “legitimate choice whether to accept the federal conditions.”

But Idaho never “agree[d]” to be bound by EMTALA, let alone to surrender its historic power to regulate the practice of medicine or the performance of abortions within its borders.

As it explains, States cannot be bound by terms that they never accepted, so it is hard to see how a third party’s agreement with the Federal Government can deprive a State of the ability to enforce its criminal laws.

Notice Alito’s argument largely ignores or even discounts women.

In sum, the Government’s new interpretation of EMTALA is refuted by the statutory text, the context in which the law was enacted, and the rules of interpretation that we apply to Spending Clause legislation. We should reject the Government’s interpretation and put that matter to rest.

He chides the majority, mostly the women on the Court, for being “too emotional.”

Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents.

Justice Jackson shot back in her decision:

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects.

The majority opts, instead, to dismiss these cases. But storm clouds loom ahead. Three Justices suggest, at least in this context, that States have free rein to nullify federal law. And three more decline to disagree with those dissenters on the merits. 

So, as of today, the Court has not adopted Idaho’s farfetched theories—but it has not rejected them either.  

This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.

SCOTUS, traditionally insulated from politics, may have handed down this indecision due to concerns about how the language in Alito’s Dissent would harm conservatives running in this year’s election. Freeing states to continue denying care to pregnant women in distress would vividly illustrate the devastating fallout from overturning Roe v. Wade. It would remind voters of the reproductive rights at risk in this election and jeopardize conservative candidates including Trump.

Punting this decision until next year signals the majority of the Court plan to decide in favor of draconian abortion bans when this issue returns to them. Writing such a toxic decision seems less daunting to them in a nonelection year.

Read the Empire Vella on Amazon

About EMTALA [https://www.cms.gov/medicare/provider-enrollment-and-certification/certificationandcomplianc/downloads/emtala.pdf]

Cornell Law School Review of EMTALA [https://www.law.cornell.edu/uscode/text/42/1395dd]

Idaho vs. United States [https://www.supremecourt.gov/opinions/23pdf/23-726_6jgm.pdf]

Amicus Brief from the National Women’s Law Center containing 70 documented cases of women almost dying and one who did die due to failure to follow EMTALA [https://nwlc.org/wp-content/uploads/2024/03/Idaho-v.-United-States-and-Moyle-v.-United-States-Amicus-Brief.pdf]

Videos of Providers Telling Their Stories about the Criminalization of Emergent Pregnancy Care [https://www.americanprogress.org/article/idaho-v-united-states-the-dangers-of-criminalizing-abortion-care/]