Abortion Ruling Leaves Pregnant Women, Doctors in Limbo over High-Risk Care

The Washington Post

11:12 JST, June 28, 2024

One month after Kelsie Norris-De La Cruz was turned away from a Texas hospital with a life-threatening pregnancy complication, the 25-year-old college senior learned about a federal law that could have protected her during the most frightening medical episode of her life.

Just knowing about the Emergency Medical Treatment and Labor Act, known as EMTALA, made her feel she had some degree of power, Norris-De La Cruz said: The federal government required doctors and hospitals to provide abortions in emergency situations like hers – even in states where abortion is illegal. If she had another high-risk pregnancy, she hoped she could invoke the federal law to demand treatment.

“EMTALA, EMTALA, EMTALA,” she had imagined saying to the doctor who refused in February to terminate her ectopic pregnancy, a highly dangerous condition in which the fetus implants outside the uterus. “If you don’t help me, I could report you.”

Norris-De La Cruz was crushed to learn Thursday that the Supreme Court, while allowing emergency abortions to resume in Idaho for now, had not ruled to broadly affirm EMTALA protections for abortion care, leaving patients who face pregnancy complications in limbo, unsure what kind of care to expect at hospitals in states with strict antiabortion laws.

If the justices had protected emergency abortions outright, she said, “I would have felt like I had a tool … power over my own body and my own life.”

“I’m on birth control right now and still terrified.”

The Supreme Court ruling provides temporary relief for doctors in Idaho, the state at the center of the legal challenge. But justices chose not to answer the larger question of whether the four-decade-old EMTALA compels medical providers nationwide to offer abortions when a physician deems it necessary to stabilize a pregnant woman. The Biden administration has repeatedly invoked that position since 2021, as abortion opponents worked to overturn Roe v. Wade and its national protections for abortion, which fell in 2022, and then pushed for state restrictions.

The case returns to the U.S. Court of Appeals for the 9th Circuit, where litigation will continue. On a call with reporters, Idaho Attorney General Raúl R. Labrador (R) said he hoped the 9th Circuit judges would interpret “the tea leaves from the Supreme Court and [understand] that … the Biden administration’s overreach needs to end.”

The Supreme Court’s decision – first revealed Wednesday, after the court accidentally posted a near-final version of its ruling – leaves the national abortion landscape unsettled.

Doctors and hospitals across the South and Midwest are still struggling to determine which pregnancy complications they can legally treat under the narrow medical exceptions included in abortion bans. Federal officials remain locked in battles with state leaders over whether state abortion bans or federal emergency-care laws take precedence; antiabortion advocates are girding for months of additional litigation regarding EMTALA and whether it compels providers that receive Medicare funds to follow the federal interpretation of the law.

And women in Texas, including Norris-De La Cruz, still don’t have federally guaranteed protection for emergency abortions. A lawsuit filed by the state has blocked the Biden administration’s EMTALA guidance from being invoked in Texas since 2022.

“This is not a victory, it’s a delay,” said Nisha Verma, an obstetrician/gynecologist who works at a large hospital in Georgia and frequently cares for women with high-risk pregnancy complications. “With all this back-and-forth, we aren’t just able to practice medicine. … We have to analyze what the court is saying, which leaves us with more uncertainty.”

Georgia’s six-week abortion ban includes exceptions for medical emergencies and “medically futile” pregnancies – but, Verma said, the implementation of those exceptions varies significantly across the state. While Verma’s institution attempts to provide clear guidance on what pregnancy conditions doctors can treat, she said, many of her colleagues at other Georgia hospitals must make these decisions on their own, knowing a wrong choice could lead to a felony conviction.

She had hoped the Supreme Court would issue a clear and resounding message that doctors are always able to provide stabilizing care in emergencies.

Instead, she said, they have to wait.

In Idaho, Biden officials challenged the state’s strict abortion ban soon after Roe was overturned, arguing that the law needs to allow abortions in cases when a mother’s health is in jeopardy. The case has ping-ponged through the courts ever since, with rulings and injunctions forcing doctors to reevaluate the circumstances under which they can legally offer abortions.

The Supreme Court ruling offered Idaho doctors a temporary reprieve, again allowing them to offer abortions when a physician determines that a woman’s health is at risk.

When Sara Thomson, an OB/GYN in Idaho, first heard about the early draft of the decision that went online Wednesday, she had time only to glance at a headline about the ruling. As soon as she saw it, and realized she would again be empowered to provide emergency abortions, she felt an immense sense of relief.

Her feelings changed later that day, she said, when she returned to read more about the decision – and realized it was only temporary.

“It was generally presumed among physicians, ‘Well, if this goes to the Supreme Court, we’ll get a definitive decision,’” Thomson said. “I find it disappointing to know … we’re going to have to wait again.”

The back-and-forth has been an extremely taxing “roller coaster,” Thomson said – so turbulent, she added, that many OB/GYNs in Idaho have recently chosen to leave the state.

The turmoil has drawn Biden officials and reproductive rights groups to Idaho. The nation’s top health official, Health and Human Services Secretary Xavier Becerra, joined Thomson and other providers Wednesday in Boise, where he vowed to defend access to emergency abortions.

“Anyone in America, who is at risk of dying … and needs to go to an emergency room, should be able to go to an emergency room. That’s always been our position,” Becerra said. “Whether the care that a medical professional says you need to stabilize your health or to save your life is an abortion or not.”

Biden officials have pledged to continue their efforts to highlight EMTALA and help women file expedited complaints about abortion denials. They also have said the prolonged fight over the emergency-care law – with a resolution still months or years away – underscores the stakes of a presidential election that pits Biden, who has worked to protect abortion access, against Donald Trump, who appointed three of the justices who overturned Roe.

More victories for the antiabortion movement may be coming. Labrador, the Idaho attorney general, said he was heartened by the Supreme Court justices’ opinions on Thursday, pointing to examples in which Justices Amy Coney Barrett and Samuel A. Alito Jr. sided with his state or said that the Biden administration had made important concessions.

“We feel pretty strongly that we’re going to win this case in the end,” Labrador said. He also insisted that there are protections for performing an abortion in Idaho when a woman’s life is in jeopardy.

“There is a pro-abortion agenda that is trying to confuse doctors and make them scared of what our law says when our law is really clear,” Labrador said, adding that physicians should not be overly worried about the threat of prosecution for abortion. “Because they get sued for malpractice all the time, they think they’re going to be prosecuted all the time. … The standards of malpractice and criminal prosecutions are vastly different.”

State and national leaders warn that the Supreme Court’s recent rulings have left America with a patchwork system, with some states restricting abortion and others becoming destinations for women seeking the procedure.

Massachusetts Gov. Maura Healey (D) on Monday took executive action to preemptively protect access to emergency abortions in the state in case the Supreme Court struck down EMTALA.

“We’ve already seen women pushed to the brink of death because they’re not allowed to receive lifesaving emergency treatment,” Healey said in an interview Wednesday. “It’s just really important that in states like Massachusetts, we be really clear about our laws, and that we’re going to protect patients and providers.”

Many patients say clarity is desperately needed, two years after Roe was struck down and replaced by a confounding mix of state abortion bans and often-overlooked federal guidance.

In February, Norris-De La Cruz was ultimately treated for her ectopic pregnancy at a different hospital in Texas, after her best friend referred her to her own OB/GYN. Norris-De La Cruz was rushed into emergency surgery after her pregnancy had already started to rupture, according to medical records and an interview with her doctor.

Norris-De La Cruz said she thinks about the episode all the time.

“If I hadn’t had fate intervene, I would have died,” she said.

The Supreme Court ruling has left her thinking about all the other women who will find themselves in similar situations, she said, with no federal law to protect them.

“It makes me wonder, ‘When will enough be enough?’” she said. “They had an option to save women and they’re choosing not to.”