Each week, Dr. Kim Puterbaugh sees several pregnant patients at Cleveland Hospital who are experiencing complications related to bleeding or infection. OB-GYNs must make quick decisions about how to treat dead or dying fetuses, including removing them, to preserve the health and life of the mother. Leaving a fetus with no chance of survival dramatically increases the risk of maternal infection and permanent injury.
But now her medical decisions are complicated by Ohio’s new abortion law, which generally bans abortions after six weeks of pregnancy if cardiac activity is detected in the fetus or fetus — which can continue for hours or days even if there is no chance of the pregnancy progressing. In the wake of the new law, University Hospitals Cleveland Medical Center has streamlined the system to have an administrative and legal team on call from Putterbaugh and other physicians when someone questions whether a planned treatment is allowed under the law.
Since the Supreme Court struck down constitutional rights to abortion in June, Puterbaugh said the cases put her and doctors like her in an impossible position — squeezing doctors between Ohio and other states’ anti-abortion laws and the federal Emergency Medical Treatment and Labor Act. That 1986 law required hospitals and doctors to provide screening and stable treatment — including abortion, if necessary — in emergency situations.
“Balancing those two things is a challenge,” says Puterbaugh, president of the Society of OB/GYN Hospitalists. “But it’s not really a challenge to me because, in my mind, the mother’s life and health always come first.”
The Biden administration argues that EMTALA prohibits state abortions in emergency situations. On August 2, the US Justice Department filed a federal lawsuit challenging an Idaho law that bans abortion in almost all circumstances. The lawsuit contends that the law would make it a criminal offense for medical providers to comply with EMTALA’s requirements to provide abortions for women experiencing emergency pregnancy complications.
In a July policy guidance and letter, the US Department of Health and Human Services reaffirmed that EMTALA requires hospitals and physicians to provide life- or health-saving medical services, including emergency abortions. The letter refers to conditions such as ectopic pregnancy, a severe blood pressure spike known as preeclampsia, and premature rupture of membranes that cause a woman’s water to break before the pregnancy is viable.
The guidelines emphasize that this federal requirement supersedes any state laws prohibiting abortion, and that hospitals and physicians who do not comply with the federal mandate may face civil penalties and termination from the Medicare and Medicaid programs.
There are no known reports of EMTALA investigations arising from denial of emergency care in pregnancy situations.
But elected officials in states that have sharply restricted abortion disagreed with the federal ruling. Texas Attorney General Ken Paxton sued the Biden administration last month to block the federal government from using EMTALA to require emergency abortions. The lawsuit contends that EMTALA does not specifically mandate certain medical procedures, such as abortion.
Abortion foes argue that state anti-abortion laws already include sufficient exceptions if the life or health of the pregnant woman is in danger. John Seago, president of Texas Right to Life, said a Texas law states that ectopic pregnancy or abortion treatment is not prohibited. In addition, the law defines a medical emergency allowing abortion as a condition in which a woman is at serious risk of “significant impairment of a major bodily function.”
Seago blamed the news media and medical associations for deliberately spreading confusion about the law. He said, the law is very clear.
Legal wrangling aside, in practice, doctors and hospital lawyers say much depends on the interpretation of vaguely worded exceptions to state abortion bans, and is further complicated by the existence of conflicting laws, such as bans on abortions based on cardiac activity. And medical providers don’t want to risk criminal prosecution, fines and loss of license if someone accuses them of violating this confusing law.
Lewis Joy, an attorney in Austin, Texas who represents hospitals and other health care providers, says his clients are probably being overly cautious, but that’s not surprising. “I try to encourage them to do the right thing, but I can’t assure them that they will be risk-free,” he said.
Much depends on when a pregnancy termination complication is considered urgent, a moment that is difficult to define. Some Missouri women come to hospital emergency departments with mild cramping and bleeding and have an ectopic pregnancy that has not yet ruptured, colleagues told Houston emergency physician Dr. Alison Haddock, who is chairman of the board of the American College of Emergency Physicians. The standard treatment is to administer the drug methotrexate, which can terminate the pregnancy.
“You’re stable until it explodes, then it’s unstable,” he said. “But how restless do you need to be? The woman’s life is not clearly at risk yet. It is not clear whether EMTALA applies. There’s going to be a lot of gray area that makes it really difficult for emergency physicians who want to do what’s right for patients without breaking any laws.”
Physicians and hospital attorneys expect clear federal guidelines and guarantees of protection from state lawyers who may challenge their medical rulings on political grounds.
They also hope that the federal government, rather than waiting for complaints from individuals, will proactively investigate whenever the new law could lead to the withholding of appropriate emergency medical care. The New York Times reported last month that a 35-year-old woman from the Dallas-Fort Worth area was denied a dilation and evacuation procedure for her first-trimester miscarriage, despite severe pain and bleeding. The hospital is said to have advised him to return home if he bled profusely. The hospital did not respond to a request for comment for this article.
“If a hospital has a policy that says when a woman in the emergency department has the right medical procedure to perform an abortion but the doctors can’t do it, that’s a violation of EMTALA that CMS should take action on,” said Thomas Barker, a former general. Consultant to the Centers for Medicare and Medicaid Services who advises hospitals on EMTALA compliance issues.
In another potential EMTALA case, Dr. Valerie Williams reported that after Louisiana enacted a near-total ban on abortion with criminal penalties last month, her hospital in the New Orleans area prevented her from performing a dilation and evacuation procedure on a pregnant patient whose waters broke at 16 weeks. . The patient was forced to go through a painful, hour-long labor to deliver a non-viable fetus, with profuse bleeding.
“This is the first time in my 15-year career that I have not been able to give a patient the care they need,” Williams wrote in a court affidavit as part of a lawsuit to block the state’s abortion law. “It’s a hoax.”
But CMS often relies on state agencies to investigate alleged EMTALA violations. That raises questions about how seriously investigations will be conducted in states where officials have adopted strict restrictions on any medical services deemed abortion-related.
Last month, the Texas Medical Association warned that hospitals are pressuring doctors to send pregnant patients home, to wait until they expel the fetus — known as expectant management — rather than treating them at the hospital to remove fetal remains, according to The. Dallas Morning News. In a letter to the Texas Medical Board, the medical association said delaying or denying care jeopardizes patients’ future fertility and poses a serious risk to their immediate health.
A study published last month in the American Journal of Obstetrics and Gynecology found that after Texas implemented its strict abortion restrictions in September, patients with pregnancy complications experienced significantly worse outcomes than similar patients in states without abortion restrictions. Among those treated with expectant management at two major Dallas hospitals, 57% suffered serious complications such as bleeding and infection, compared with 33% in other states who chose immediate pregnancy termination.
OB-GYNs and emergency physicians said they expect to be on the phone frequently with advocates to get advice on complying with state anti-abortion laws when seeing pregnant patients with emergency and near-emergency complications.
“It’s going to endanger women’s lives, there’s no question about that,” Puterbaugh said.
Contact us Submit a story tip