‘How sick do they have to get?’ Doctors brace for US supreme court hearing on emergency abortions
Dr Lauren Miller used to cry every day on her way to work.
A fetal maternal medicine specialist in Idaho, Miller despaired over the possibility she might be forced to tell patients she could not help them. Idaho has one of the strictest abortion bans in the nation, which means Miller could only perform abortions to save a woman’s life – and many patients, even those facing medical emergencies with potentially deadly consequences, were not yet sick enough to qualify.
“All I could say is: ‘We have to get them a transport out of state,’” she said. “It just breaks my heart that I knew them and had a relationship with them and couldn’t offer them the same care that I could have given them a year ago”, before Idaho’s ban went into effect.
One law, however, briefly allowed Miller to provide abortions in emergencies, Miller said: a 1986 federal law, almost unknown outside of the medical field, known as the Emergency Medical Treatment and Active Labor Act, or Emtala. That law requires hospitals that receive Medicare dollars to stabilize any patients who may show up at their doors in the midst of a medical emergency – a potentially lower threshold than what is allowed under Idaho’s ban, which allows for abortions if a woman’s life is in jeopardy. If a hospital can’t stabilize a patient, according to Emtala, the hospital must transport the patient to a facility that can.
But now even Emtala, the subject of a case that will be heard by the US supreme court this week, may be permanently pulled out from under Miller and other doctors in her situation who are struggling to understand what role they can play in treating patients in crisis.
Shortly after the court overturned Roe v Wade in 2022, ushering in abortion bans throughout the country, the Biden administration declared that Emtala applies to people who may need emergency abortions and pre-empts any bans that state otherwise. It later filed a lawsuit against Idaho, arguing that its abortion ban violates Emtala and forces doctors into an untenable catch-22: if they follow Idaho’s law, they may violate a federal one.
“How high a risk does a patient have to take, or how sick do they have to get, before it’s OK to actually give them the medical care that they need?” said Dr Stacy Seyb, a maternal fetal medicine specialist in Idaho. “It is not good medicine to let them get extremely sick.”
On Wednesday, the nation’s highest court will hear arguments in the case – and the conservative majority’s opinion could have vast consequences for states across the country.
Six other states have abortion bans on the books that look a lot like Idaho’s; rather than permitting abortions in cases where a patient’s “health” is at risk, these states – which include South Dakota, Mississippi, Oklahoma and Arizona – only allow abortions to save a patient’s “life”. In the Biden administration’s view, these bans could conflict with Emtala.
Dr Kristin Lyerly used to work as an OB-GYN in Wisconsin, which also has a law on the books that only permits life-saving abortions and has been singled out by the Biden administration for potentially conflicting with Emtala. Today, Lyerly works in Minnesota. “I don’t feel safe practicing in Wisconsin right now,” she said.
Abortion remains available at some clinics in Wisconsin as the ban, which dates back to 1849, is being litigated – but
Lyerly said some Wisconsin hospitals had not provided the procedure since Roe fell.
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A federal court in Idaho initially agreed that Emtala protected doctors’ ability to perform emergency abortions, but in January, the US supreme court ruled to let Idaho’s full ban take effect, in effect overriding the Biden administration’s view of Emtala. Idaho, which is being represented by the Christian powerhouse law firm the Alliance Defending Freedom, has argued in court papers that Emtala has nothing to do with abortion and it does not authorize doctors to perform procedures that are otherwise illegal.
In 2023, before the US supreme court ruling, just one woman was taken out of state for care for maternal complications, said Dr Jim Souza, the chief physician executive for an Idaho hospital system, in a call with reporters. But since January, he said, six have had to be transported out of Idaho.
“We can anticipate up to 20 patients needing out-of-state care this year alone,” Souza said. “Putting somebody in a whirly bird and flying them to another state creates an obvious delay in care that puts the patient’s health and life at risk. If she is in transit and begins exsanguinating – hemorrhaging very quickly – the resources you have are no longer the resources of a tertiary care center. They’re the resources of a helicopter.”
How high a risk does a patient have to take, or how sick do they have to get, before it’s okay to actually give them the medical care that they need?
Dr Stacy Seyb
One brief filed in the US supreme court case by the organization Physicians for Human Rights detailed how an Oregon OB-GYN took care of a patient who had been transferred in from Idaho. The woman had developed pre-eclampsia and needed an abortion but, unable to get one in Idaho, had begun to bleed so much that she developed anemia. Her kidneys also started to fail.
The kind of cases that may fall under Emtala’s purview usually involve patients who want to be parents but face some complication that makes proceeding with a pregnancy dangerous, said Dr Sara Thomson, an OB-GYN in Idaho.
“If your water breaks really early in the pregnancy, that’s already such a horrible, heartbreaking conversation to have, but it is so much harder now,” she said. “In addition to having to have that conversation, we then have to navigate: is this patient sick enough to offer her delivery in our state? Or do we have to further traumatize her by talking to her about leaving the state or telling a patient you’re sick but not sick enough to have treatment right now?”
The doctors who spoke to the Guardian agreed: Emtala is not enough to fix the medical quandaries unleashed by the fall of Roe and the expansion of abortion bans. But, Thomson said: “It’s certainly better than what we have.”
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Many doctors have refused to work under these conditions, moving out of states that, they say, stop them from being able to treat their patients.
Related: ‘I cried with her’: the diary of a doctor navigating a total abortion ban
In January 2023, Dr Leilah Zahedi-Spung left her dream job as a maternal fetal medicine specialist in Tennessee over that state’s abortion ban. At the time, Tennessee and Idaho’s restrictions on the procedure were very similar: rather than carving out an explicit exception for patients facing medical emergencies, the laws said that doctors who were prosecuted for performing medically necessary abortions could claim an “affirmative defense” in court – a standard that critics have said amounts to “guilty until proven innocent”. Both Tennessee and Idaho have since stripped the “affirmative defense” provisions from their abortion bans.
Every time Zahedi-Spung had to send a patient out of Tennessee, she told the hospital where she worked that she felt like she was violating Emtala. She declined to say whether she ever performed any medically necessary post-Roe abortions in Tennessee, but she did hire a criminal defense attorney to protect herself.
“I was never gonna let anyone die in front of me,” she said.
Zahedi-Spung now practices in Colorado, where she regularly sees patients fleeing abortion bans from states as close as Idaho and as far away as Florida. Zahedi-Spung also works with Miller, who decided to relocate to Colorado last year.
“I just could not comply with a law that could easily leave a mother dead,” Miller said. “It was too counter to my own moral and professional codes. I refuse to be complicit in such reproductive injustices.”
I just could not comply with a law that could easily leave a mother dead. I refuse to be complicit in such reproductive injustices
Dr Lauren Miller
Thomson wants to stay in Idaho, but she recently updated her résumé for the first time in a decade, in case she decides to seek a new job. Seyb said that he plans to stay in Idaho, but that the uncertainty around the future of the ban may hasten his retirement.
A 2023 survey of more than 100 Idaho doctors, all of whom have had their practice affected by the state’s ban, found that about two-thirds were considering moving out of state in the next year. Of that share, 93% blamed the ban.
“The problem is that you’re pitting patients and physicians against each other,” Zahedi-Spung said. “If the physician provides the care the patient needs, then the physician is in harm’s way. And if the physician doesn’t provide the care the patient needs, the patient is in harm’s way. But neither of them can ever be safe at the same time.”
? This subheading of this article was amended on 23 April 2024 to clarify that a 1968 federal law requires hospitals that receive Medicare dollars, not Medicaid dollars as an earlier version said, to stabilize patients in a medical emergency.
