#EMTALA

[justinspoliticalcorner]

Jill Filipovic at Slate:

Should the very state of being pregnant place women in a subclass of citizen, vulnerable to criminal prosecution or civil penalties for behavior that would be perfectly legal from a nonpregnant person? Judging by their proposed legislation and various legal antics, the anti-abortion movement says: Yes. Pregnant women simply should not have the same rights as any other U.S. citizen. Take, for example, efforts to criminalize the crossing of state lines for abortion. There is a very, very long tradition in the U.S. of allowing people to travel out of state to access medical care, and it’s so deeply ingrained we barely think about it. Consider, for example, the businesswoman who lives in New Jersey but works in New York City and so goes to the dentist in midtown Manhattan, or the dad who lives on the Kansas side of Kansas City but takes his sick kid to a specialist at a hospital on the Missouri side. A great many Americans don’t think twice about crossing state lines for health care. Abortion opponents are trying to change that for one group of people: pregnant women.

Conservative legal groups are already drafting model legislation to prevent pregnant women from traveling for abortions by legally penalizing anyone who helps them, a strategy used by the state of Texas in one of its abortion bans, which allows anyone in the U.S. to sue those who assist women with abortions—and be rewarded with a bounty paid by the state. The architect of that Texas abortion bounty law was Jonathan Mitchell, an anti-abortion activist (and Donald Trump lawyer) who is currently representing a Texas man in his quest to probe into his ex-girlfriend’s abortion, which she allegedly sought outside of their home state. Mitchell filed a petition to learn the details of this woman’s abortion for, he says, a potential future lawsuit. But to be clear, the woman in question did absolutely nothing illegal: Traveling out of state for health care, including abortion, is not against the law in Texas or anywhere else. It’s just that Mitchell and other abortion opponents would like to change that—and are apparently happy to represent controlling (and, in another case Mitchell took on, allegedly abusive) men to do it.

They’re also happy to reclassify pregnant women as a kind of sub-citizen who, by simple virtue of their pregnancy status, are not entitled to the same legal freedoms and protections as anyone else. A Texas woman who goes to a Colorado abortion clinic is being treated differently from any nonpregnant person who travels for a medical procedure—and you can bet that this categorization of pregnant people as suspect, should they travel out of state, will lead to all sorts of investigations and abuses.

Take this hypothetical: Say the anti-abortion movement succeeds and makes it a crime to travel out of state for an abortion. Say a woman in Idaho (where abortion laws are so extreme, they have no exceptions for saving a woman’s health) travels to Washington state, where abortion is legal, and gets her hands on abortion-inducing drugs. Say she’s not pregnant. Say she takes the drugs anyway. Has she committed a crime? Or, to use a more likely legal model, say Texas makes it a crime to help a woman travel for an abortion, and a Texas woman goes to Colorado, gets abortion-inducing drugs, and takes them, despite not being pregnant. Is the friend who helped buy her plane ticket still liable? Presumably not: No pregnancy means no abortion, which means no violation of an abortion ban. But if the two women in these scenarios had been pregnant, the legal calculus would be entirely different.

Or to use a perhaps more realistic scenario: Mifepristone, an abortion-inducing drug, is also commonly used to treat Cushing’s syndrome, and researchers say it has tremendous potential to treat other illnesses, too, from various cancers to PTSD. Under an anti-abortion legal scheme, if a Texas woman with Cushing’s syndrome travels out of state, gets mifepristone, and takes it, she (or those who help her) would face potential legal consequences only if she’s pregnant. It’s her status as a pregnant woman—not the act of traveling or even taking an abortion-inducing drug—that is the problem. And generally, the law frowns on making a person’s status—rather than their actions—the basis of a crime or a lawsuit. That’s part of treating all people equally under the law, and offering all people the equal protection of it.

Preventing pregnant women from crossing into a state for a legal medical procedure isn’t the only way in which the anti-abortion movement is attempting to curtail basic rights and protections for anyone carrying a pregnancy. Earlier this year, abortion opponents argued before the Supreme Court that pregnant patients should be treated differently than nonpregnant ones in cases of serious medical emergencies—that doctors and other health workers should be permitted to give pregnant women a substandard level of care, and to essentially refuse to appropriately stabilize them. If a woman comes in and is very ill, she’s entitled to one standard of care; if she comes in and is very ill and pregnant, that standard of care is lower in states that criminalize abortion.

At issue in the Supreme Court case, a ruling in which is expected early this summer, is the Emergency Medical Treatment and Labor Act (EMTALA), a law initially written to prevent hospitals from dumping seriously ill patients who couldn’t pay. Pregnant women in particular were often coming into hospitals in labor, only to be refused care; there were stories of women birthing in hallways and cars. EMTALA says that any hospital receiving federal Medicaid dollars (which is most hospitals, both public and private) must provide lifesaving care to anyone who walks through their doors, regardless of their ability to pay. That means that hospitals have an obligation to stabilize ill patients. (If they don’t have the ability to appropriately stabilize a patient, they must move the patient to a facility that does.)

Jill Filipovic wrote in Slate the insidious trend of anti-abortion hardliners making pregnant people 2nd class citizens by enacting laws criminalizing access to out-of-state abortion services (this is also applicable to gender-affirming care).

[whenweallvote]

BREAKING: In a 6-3 ruling, the U.S. Supreme Court rejected an attack on emergency abortion care in Idaho, for now, despite the state’s near-total abortion ban.

These are life or death situations — but instead of making it clear that federal law requires access to abortion in an emergency in every state regardless of the state’s abortion ban, the Court chose not to.

Everyone should have access to life-saving emergency medical care. As litigation in this case will continue in the lower courts, the fight for abortion access is on the ballot in at least 12 states this November. Register to vote — and ask three friends and family members to register, too — at weall.vote/register.

[gwydionmisha]

Republicans are killing women on purpose. They knew this would happen. They know it's happening now. They do not care. It will keep happening as long as they have any power at all at the federal and state level.

This is a different case in the same state. I'm putting them in the same post because I feel like there's a pattern and something needs to be done.

[phoenixyfriend]

A fascinating listen from the NYT podcast "The Daily" about the federal government's push to combat some of the most extreme abortion bans using a 1980s federal law called EMTALA. I will note that this is not the ONLY attempt to combat the restrictions, but that a greater pushback is still reliant on tipping the House and Senate left by enough to pass abortion protections. In the meantime, this partial fix is intended to address the issue of dangerous medical complications that are routinely going unaddressed or directed out of state due to the fear of repercussions for "not being truly life-threatening."

This coverage includes audio recordings of Supreme Court questions during the period on which they heard arguments.

For an explanation on how "life of the mother" is inadequate and vague, may I suggest Mama Doctor Jones (a registered ob/gyn from Texas who is currently practicing in New Zealand.) She has a number of videos on this topic, but this one addresses one of the extreme situations that are brought up in the arguments and questioning:

[spooniestrong]

Anyone who has gone to a hospital’s emergency room expecting to receive medical care — not knowing where else to turn, uncertain whether a loved one is having a medical emergency and what can be done about it, or unsure if they can pay — has relied on a law they couldn’t name: the Emergency Medical Treatment and Labor Act (EMTALA). It's now in danger from the Supreme Court.

[ttpd-chair]

“What is at stake now – what was being debated in court on Wednesday – is how much women can be forced to suffer, how much danger they can be placed in. The anti-choice movement, and its allies on the bench, have shown once again that there is no amount that will satisfy them.”

[tomorrowusa]

When you vote for president, you are voting for the person who appoints federal judges – including those on the US Supreme Court. When you vote for US senator, you are voting for one of the people who confirms those judges.

Federal judges have lifetime appointments. So bad choices for president or senator live on long past the four-year or six-year terms of the elected officials who put those judges on the bench.

If you want to know what a fully Trumpified federal judiciary would be like, check out the US Court of Appeals for the Fifth Circuit. It covers Texas, Louisiana, and Mississippi. The Fifth Circuit makes the current US Supreme Court look liberal and capable.

The latest atrocity from the Fifth Circuit involves a decision where a state law forbidding abortion takes precedence over the survival of woman seeking emergency treatment.

The case is Texas v. Becerra, and all three of the United States Court of Appeals for the Fifth Circuit’s judges who joined this opinion were appointed by Republicans. Two, including Kurt Engelhardt, the opinion’s author, were appointed by former President Donald Trump. The case involves the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute requiring hospitals that accept Medicare funds to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment.) EMTALA contains no carve-out for abortion. It simply states that, whenever any patient arrives at a Medicare-funded hospital with a medical emergency, the hospital must offer that patient whatever treatment is necessary to “stabilize the medical condition” that caused the emergency. So, if a patient’s emergency condition can only be stabilized by an abortion, federal law requires nearly all hospitals to provide that treatment. (Hospitals can opt out of EMTALA by not taking Medicare funds but, because Medicare funds health care for elderly Americans, very few hospitals do opt out.) This federal law, moreover, also states that it overrides (or “preempts,” to use the appropriate legal term) state and local laws “to the extent that the [state law] directly conflicts with a requirement of this section.” So, in states with sweeping abortion bans that prohibit some or all medically necessary abortions, the state law must give way to EMTALA’s requirement that all patients must be offered whatever treatment is necessary to stabilize their condition. It is important to emphasize just how little EMTALA has to say about abortion. EMTALA does not protect healthy women who wish to terminate their pregnancies. Nor does it preempt any state regulations of abortion, except when a patient is experiencing a medical emergency and their doctors determine that an abortion is the appropriate treatment. But when an emergency room patient presents with a life-threatening illness or condition — or, in the words of the EMTALA statute, that patient has a condition that places their health “in serious jeopardy,” that threatens “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part” — then Medicare-funded hospitals must provide whatever treatment is necessary. The Texas case, in other words, asks whether a state government can force a woman to die, or suffer lasting injury to her uterus or other reproductive organs, because the state’s lawmakers are so opposed to abortion that they will not permit it, even when such an abortion is required by federal law. And yet, despite the fact that the EMTALA statute is unambiguous, and despite the fact that this case only involves patients whose life or health is threatened by a pregnancy, three Fifth Circuit judges told those patients that they have no right to potentially lifesaving medical care.

Of course the ruling by the Fifth Circuit lacks basic logic. If the mother dies, the fetus is likely lost as well anyway. d'oh!

All three judges on the panel are Republicans – two having been appointed by Trump. Don't expect judicial genius from these folks.

Engelhardt’s opinion is surprisingly brief for such a consequential decision, and for one that reads a straightforward federal law in such a counterintuitive way. The section of the opinion laying out Engelhardt’s unusual reading of this federal law is only about eight pages long — yet it contains at least three separate legal errors.

This case will probably end up before SCOTUS. The best we should expect is for the Supremos to toss out the decision because of the legal errors made by the Fifth Circuit.

But in the long run, to protect reproductive freedom it's necessary to keep Republicans out of the White House and out of the majority in the Senate for the foreseeable future.

Be A Voter - Vote Save America

[mental-mona]

This is infuriating and horrifying, but not particularly surprising.

[justinspoliticalcorner]

Joyce Vance at Civil Discourse Substack:

Since the Supreme Court reversed Roe v. Wade, voters in six states have had the opportunity to vote on constitutional amendments regarding abortion. Every time the issue has been on the ballot, voters have turned out to support abortion rights. In California, Michigan, Ohio, and Vermont, voters approved measures that amended the state constitution to protect reproductive rights. In Kentucky and Kansas, voters rejected measures designed to strictly limit access to abortion. In the years since Roe was reversed, Americans have come to understand that abortion is health care. And that American women suffer when it is denied to them. In January of this year, we learned about Brittany Watts, an Ohio woman who was denied an abortion and charged with abuse of a corpse, a felony, after she miscarried alone and at home.

Nicole Miller, an Idaho woman, had to fly to Utah earlier this year as a failing pregnancy caused her to bleed profusely. But, not enough for doctors in Boise to terminate the pregnancy that was endangering her life. A doctor refused to perform the emergency surgery, telling her that he wasn’t willing to risk his medical career for her. She was able to get a lifesaving abortion out of state, but as more bans go into place, the Guttmacher Institute reports more women are having to travel—and travel further—to obtain needed care. The expense and logistics of arranging travel become a barrier, and more women are exposed to needless suffering and trauma in the name of “pro-life” policies. Yesterday in Texas, two women filed administrative complaints against hospitals, alleging they were denied emergency care for ectopic pregnancies, which put their lives at risk in violation of federal law.

Kyleigh Thurman, a Texas woman, alleges she was initially discharged from the hospital and subsequently denied care days later for an ectopic pregnancy. She was finally treated after her ob-gyn pleaded with the hospital staff, but the delay caused her fallopian tube to rupture, she said. According to the complaint, the hospital treated her only after her ob-gyn “pleaded” with staff to provide the necessary care.“For weeks, I was in and out of emergency rooms trying to get the abortion that I needed to save my future fertility and life,” she said.

Kelsie Norris-De La Cruz alleges she was discharged from a Texas hospital without treatment for an ectopic pregnancy. Just hours later she had to be rushed into emergency surgery at a different facility. Medical experts have opined the Texas abortion ban played a role in her denial of care.

The law in question is the Emergency Medical Treatment and Labor Act (EMTALA). It prohibits hospitals from “patient dumping,” and the Biden Administration argued that meant hospital emergency rooms were obligated to provide lifesaving care, including abortion, to save a patient’s life. The Supreme Court ended up ducking the issue, deciding that certiorari in the case, Moyle v. United States, had been “improvidently granted,” meaning it shouldn’t have agreed to hear the case, and sending the case back to the Court of Appeals. That leaves doctors in limbo, not knowing if action would be taken against them in the future for providing patients with care now, while the lower courts consider the matter further.

As a result of the post-Roe climate, more women have suffered as a result of abortion bans causing denial of emergency care for ectopic pregnancy.

[masterofd1saster]

CJ court watch - EMTALA case

SCt refused on Mon, 7oct24 to hear the case of Becerra v. Texas, 23-1076. That means the 5th Cir. judgment remains in effect.

Becerra is the Secretary of Health & Human Services. He had told Texas that its abortion prohibition violated the Emergency Medical Treatment and Active Labor Act. Texas sued in the U.S. District Court for the Northern District of Texas. That court ruled in favor of Texas, and Becerra appealed to the U.S. Court of Appeals for the 5th Cir.

EMTALA says a hospital must provide treatment to protect an "individual's health and, in the case of a woman in labor, the health of the unborn child." 42 U.S.C. §1395dd. Examination and treatment for emergency medical conditions and women in labor. (2024). Hard to argue that an abortion would protect an unborn child's health.

The 5th Cir., ruling against Becerra, said

The question before the court is whether EMTALA, according to HHS's Guidance, mandates physicians to provide abortions when that is the necessary stabilizing treatment for an emergency medical condition. It does not. We therefore decline to expand the scope of EMTALA.   

The 5th Cir. affirmed an injunction that said

(1) The defendants may not enforce the Guidance and Letter's interpretation that Texas abortion laws are preempted by EMTALA; and  (2) The defendants may not enforce the Guidance and Letter's interpretation of EMTALA both as to when an abortion is required and EMTALA's effect on state laws governing abortion within the State of Texas or against AAPLOG's members and CMDA's members.   

[American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG) and Christian Medical & Dental Associations (CMDA)]

After losing in both lower courts, Becerra then appealed to SCt.

Given that AAPLOG and CMDA operate throughout the US, this ruling may have wide effect.

The 5th Cir's opinion in Texas v. Becerra, No. 23-10246 (2024) is linked.

[andritambunan]

Latest for The New York Times

By Pam Belluck

Anna Nusslock never expected to be denied an emergency abortion by a hospital in California, a state with some of the strongest abortion rights protections.

In February, Dr. Nusslock, 36, a chiropractor in Eureka, Calif., went to the nearest emergency room, at Providence St. Joseph Hospital, after her water broke just 15 weeks into pregnancy. Doctors said one of the twins she was carrying would not survive and the other had almost no chance, according to medical records. They said that if the pregnancy was not terminated, she could face infection, hemorrhaging and threats to her future fertility.

But because fetal heart tones could still be detected, a doctor at the Catholic-affiliated hospital said the institution’s policy prohibited providing abortion unless Dr. Nusslock’s life was at risk, according to her medical records. After several hours, her husband drove her to the next closest hospital, where she arrived hemorrhaging and passing a blood clot the size of an apple. She expelled one fetus and was rushed into the operating room so the other fetus could be removed, records show.

“I thought I would be safe here from things like this,” Dr. Nusslock said in an interview, “from people taking away choices from me and leaving me in danger.”

Similar situations have occurred in states with abortion bans, but California’s attorney general, Rob Bonta, said in an interview that Dr. Nusslock’s case shows they can happen “even in California, a place that is very strongly pro-choice.”

On Monday, the attorney general filed suit against the company that operates Providence St. Joseph, charging that the hospital violated a California law requiring hospitals with emergency rooms to provide care to prevent not only death, but “serious injury or illness.”

Read more below

https://www.nytimes.com/2024/09/30/health/california-abortion-lawsuit-st-joseph-hospital.html

[thatstormygeek]

The day she went to an emergency room — cramping and bleeding at 18 weeks pregnant — Kansas voters were heading to the polls to vote in favor of keeping abortion legal in that state. Farmer went to the emergency room at Freeman Health’s emergency department in Joplin at her OB-GYN’s urging. There, medical staff determined the pregnancy was no longer viable, but because the fetus had a heartbeat, and because Farmer’s condition wasn’t immediately life-threatening, she was turned away. According to the lawsuit, doctors told Farmer that she was at risk of infection, severe blood loss, the loss of her uterus and death. But they would not help her because of Missouri’s abortion ban, which had only been in place for several weeks, outlawing all abortions except for in cases where the mother’s life is at risk. Farmer then traveled three hours across the border to a hospital in Kansas, where abortion is limited after 22 weeks gestation. However, doctors at the University of Kansas Health System also refused to perform an abortion. Kansas law bans abortions at any facilities run by the University of Kansas Hospital Authority, with exceptions only for the life of the mother.

[krisje3]

The Next One

Someone at the Seder table asked the Groom about the outbreak of bird flu, aka H5N1 Avian Influenza, in cattle. He had just finished his shift as an attending physician on the Intensive Care Unit at his hospital. He was still seeing patients recovering from severe post-Covid complications. My brave, Intensivist son-in-law was about to dig into my specialty Passover brisket when he put down his…