The fate of emergency abortion care rests with Supreme Court

Shanae Smith-Cunningham arrived at Memorial Regional Hospital on Dec. 21, 2022 - five days after her water broke, only halfway through her pregnancy. Despite her pleas for treatment and the risks to her health, staff at the Hollywood, Fla., hospital turned her away amid the state’s new abortion restrictions.

The decision to send Smith-Cunningham home put her life in peril, health officials later determined. It also meant that Memorial Regional, flagship of a public health system, had violated a federal law requiring hospitals to provide emergency care, officials at the Centers for Medicare and Medicaid Services concluded. The agency in October 2023 warned Memorial Regional to immediately take corrective steps - or risk forfeiting hundreds of millions of dollars in federal funding.

“[U]nless these deficiencies are addressed as described below, Memorial Regional Hospital’s participation in the Medicare program will be terminated,” according to a CMS letter sent to the hospital’s CEO and obtained by The Washington Post.

The Supreme Court on Wednesday is scheduled to hear arguments over whether the Biden administration has the power to penalize hospitals such as Memorial Regional that fail to provide abortions in emergency situations - or if the White House is wrongly applying a nearly 40-year-old emergency-care law to justify access to abortions.

Biden officials insist they need the authority to protect emergency abortions, citing the nearly two-dozen state abortion bans that have confused health workers, confounded patients and delayed lifesaving care. Conservatives counter that the White House is twisting a law that offers no carve-out for the procedure.

Wednesday’s hearing at the high court also represents the latest legal challenge that could shape abortion access across the country, nearly two years after justices struck down Roe v. Wade, which had guaranteed a constitutional right to abortion, and one month after the court heard arguments on a challenge to a key medication used in most abortions.

This week’s case, Moyle v. United States, centers on the Emergency Medical Treatment and Labor Act - known as EMTALA - a federal law requiring hospitals that receive federal funds to stabilize or transfer patients needing emergency care. Hospitals must provide the care regardless of the patient’s insurance status, mental illness or other complications that might otherwise lead hospitals to turn them away. Federal officials have said the national law takes precedence over state abortion restrictions and sued the state of Idaho in August 2022, saying its abortion ban - one of the strictest in the country - was preempted in part by EMTALA.

The White House and its allies say it is applying the emergency-care law as originally designed, pointing to years-old cases they say show a consistent pattern of enforcement. Two Catholic hospitals in Michigan and Oklahoma that refused to provide treatment to women who needed abortions in 2012 were cited by federal officials for EMTALA violations; a Catholic hospital in Oklahoma was also cited for failing to terminate a patient’s ectopic pregnancy in 2018. Biden officials have hesitated to penalize some hospitals that turned away women seeking abortions, saying that the law allows only for narrow investigations related to emergency care.

[Complaints that emergency rooms refused to treat pregnant women spiked after Roe v. Wade was overturned]

“The intent of the law is actually very simple and very clear,” said Bruce C. Vladeck, who oversaw Medicare during the Clinton administration and joined an amicus brief supporting the Biden administration’s position. “If a patient shows up in an emergency room with a true emergency situation, the hospital is obligated to provide the standard of care for whatever the emergency condition is, at least until the patient’s condition is stabilized.”

Conservatives point to the law itself. The text of the statute requires hospitals to offer “any individual” with an emergency medical condition “such treatment as may be required to stabilize the medical condition.” There is no reference to abortion in the statute or to any other type of care, and GOP officials say the Biden administration is wrongly prescribing treatment when EMTALA leaves those decisions to hospitals.

“It is hard to imagine a tinier mousehole or a larger elephant than what the Government has contrived here,” lawyers for Mike Moyle, the Republican speaker of the Idaho House of Representatives, wrote in their brief. “EMTALA says nothing about abortion.”

Idaho Attorney General Raúl R. Labrador (R), joined by the Christian legal advocacy group Alliance Defending Freedom, told the justices in a brief that President Biden’s message to hospitals and threat to pull funding is essentially a “nationwide abortion mandate” that will turn emergency rooms into “abortion enclaves in violation of state law.”

The case has rattled health experts, particularly after the White House twice lost in federal appeals court, and some Biden officials say they are bracing for defeat at the high court. The outcome will hinge on how narrowly or broadly the justices interpret the text. Most conservative justices are proponents of the method of legal interpretation that sticks to the words of the law under review, not legislators’ intent - a reading that bodes poorly for the White House, given that EMTALA does not specifically mention abortion.

Experts have warned that if the Supreme Court rules against the Biden administration, states could be empowered to pick and choose how to apply the federal emergency-care law well beyond abortion.

“We don’t want to have the right to have an emergency stabilized, or other treatments that we think of as rights, decided in 50 different ways,” said Jill Horwitz, a law professor at the University of California at Los Angeles who has studied EMTALA.

The battle over EMTALA illustrates conservatives’ interest in using the law, too.

A future GOP White House should “reverse distorted pro-abortion ‘interpretations’ added to the Emergency Medical Treatment and Active Labor Act,” Project 2025, a conservative alliance backed by the Heritage Foundation, wrote last year in recommendations intended to guide a Republican administration. Project 2025 also said a future health department could invoke EMTALA to investigate health-care providers that fail to care for children “born alive” from abortions, referencing the extremely rare cases when a premature birth may overlap with an abortion in the third trimester. These cases typically involve pregnancy complications or fatal fetal anomalies that are incompatible with life.

The Biden administration first turned to EMTALA in late 2021 as a way to try to ensure access to abortion in limited situations, an effort that ramped up after the Supreme Court struck down Roe the following summer.

CMS issued guidance to hospitals receiving Medicare funds that emergency room doctors must terminate pregnancies in some circumstances even if a state’s law bars the procedure. Hospitals that do not comply face penalties of up to $120,000 per violation. The Biden administration subsequently publicized one case involving a pregnant patient who sought care in Missouri and Kansas, where CMS determined that hospitals had violated the law in denying an abortion.

The Biden administration also challenged Idaho over its strict abortion law, which took effect after Roe was overturned in June 2022, that bans all abortions except those necessary “to prevent the death of the pregnant woman” and imposes penalties of up to five years on doctors who perform the procedure.

Solicitor General Elizabeth B. Prelogar told the court in the government’s brief that EMTALA’s protections are broader than those in the Idaho law’s medical exception, saying that the federal law helps protect against emergencies that can still have devastating effects, such as organ failure or loss of fertility, even if death is not imminent.

“Many pregnancy complications do not pose a threat to the woman’s life when she arrives at the emergency room - but delaying care until necessary to prevent her death could allow her condition to deteriorate, placing her at risk of acute and long-term complications,” Prelogar wrote. Delaying care until “the doctor can say that termination is necessary to prevent her death, as Idaho law requires, stacks tragedy upon tragedy with little additional likelihood of fetal survival.”

Idaho’s physicians have received conflicting messages from federal courts. A district court judge in August 2022 sided with the Biden administration and temporarily blocked Idaho from punishing doctors who performed abortions to protect the health of a pregnant patient. Then, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in September 2023 allowed the state to enforce the law - before a broader panel of 9th Circuit judges in October again blocked Idaho’s ability to punish emergency physicians while appeals continued.

That’s when the Supreme Court agreed to intervene in response to Idaho’s emergency request.

In a separate case in Texas, the conservative U.S. Court of Appeals for the 5th Circuit ruled against the Biden administration, saying Texas hospitals and doctors are not obligated to perform abortions under the federal emergency-care law.

EMTALA’s ability to compel health workers to act rests in the power of its threat to block access to some of the 67 million people enrolled in Medicare, which provides health coverage for older Americans who represent the bulk of hospital inpatient care. Being terminated from Medicare could trigger exclusion from other federal programs.

“That’s the death penalty,” UCLA’s Horwitz said. “Hospitals cannot survive if they don’t participate in the Medicare program.”

The Biden administration has been cautious about using the law to penalize hospitals and enforce abortion access. Despite dozens of reported cases in which pregnant women were turned away from emergency care following the end of Roe, The Post could find only four instances when CMS officials formally warned hospitals that they had violated EMTALA, conducted an investigation and threatened to expel them from Medicare, frustrating some advocates who believe the law should be more routinely invoked. Federal officials have said they cannot confirm or deny the existence of many EMTALA probes, citing the confidentiality of investigations.

One of those hospitals, Memorial Regional, underwent two surprise inspections after its initial October 2023 warning and was told to submit a plan of correction. After reiterating to the hospital in January that it needed to overhaul its emergency operations, federal officials in February said they had determined Memorial Regional had successfully addressed its emergency-care issues and that it was no longer at risk of termination from Medicare.

Memorial Regional declined requests to comment or to share the plan of correction that it submitted to Medicare.

“As it relates to EMTALA, we respectfully refrain from engaging in discussions that may have patient privacy implications,” Memorial spokeswoman Yanet Obarrio Sanchez wrote in an email.

Some health workers have hailed the Biden administration’s stance on EMTALA, saying it has helped clarify their obligations. Doctors found it much easier to navigate complicated pregnancy situations in 2023, when a Biden administration challenge temporarily allowed them to provide abortions anytime a pregnant woman’s health was at risk, according to Jim Souza, chief physician executive at St. Luke’s Health System in Idaho.

Throughout 2023, Souza said, only one pregnant patient who arrived in the emergency department was transferred out of state for care. In the few months since the Supreme Court again allowed Idaho’s full abortion ban to take effect, he said, six patients with medical emergencies have had to leave the state for treatment.

“Since then, there’s a lot of second-guessing and hand wringing: Is she sick enough?” Souza said. “Is she bleeding enough? Is she septic enough for me to do this abortion and not risk going to jail and losing my license?”

Other health workers said the Biden administration’s push on EMTALA has inadvertently created confusion, and they have wrestled with whether to report colleagues for violations of the law.

Speaking on the condition of anonymity to discuss a sensitive medical situation, a Tennessee physician described to The Post the experience of treating a patient who needed an emergency abortion, but who had been seemingly turned away by a physician in a rural community nearby. As the Tennessee physician weighed whether to report the case as a potential EMTALA violation, she called the first doctor to learn what had transpired - realizing the nearby physician had wanted to perform an abortion but was too scared to do so.

“I’ve increasingly appreciated that [EMTALA violations] are not from a malicious stance - they’re from fear, lack of support” and other pressures, the physician said. “If I would’ve reported her, I would not have heard about the subsequent six or seven patients that she’s needed help with.”

Even Smith-Cunningham, the patient that Memorial Regional turned away, said she doesn’t blame the hospital for her experience. She eventually delivered a nonviable fetus, several days after initially seeking care from the hospital, and later needed surgery to remove pieces of placenta left inside her uterus.

“Honestly, I think it’s not the hospital nor the doctors’ fault,” Smith-Cunningham said in a text message this month, adding that she knows physicians were trained to help patients such as her but couldn’t because of Florida’s abortion restrictions. The state’s 2022 law banned the procedure after 15 weeks of pregnancy except when an abortion would “save the pregnant woman’s life” or “avert a serious risk of substantial and irreversible physical impairment of a major bodily function.”

A new law will soon ban abortions in Florida after six weeks.

“This is the government’s fault and their stupid law, which doesn’t make any sense,” Smith-Cunningham said.