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Does Federal Law Protect Abortions in Medical Emergencies? The Biden Administration Will Find Out in Court

9 minute read

In the weeks since the Supreme Court overturned Roe v. Wade, physicians around the country have struggled to navigate new legal landscapes when providing care for patients experiencing emergency medical conditions, including ectopic pregnancies, miscarriages, preeclampsia, and other severe pregnancy complications.

Federal health care law already required that physicians treat pregnant people—and all patients—in medical emergencies and provide care to stabilize them, regardless of state laws around specific procedures or the patient’s ability to pay. The Biden Administration issued guidance last month that explicitly reminded providers abortion is included those scenarios, and said doctors are protected if they terminate a patient’s pregnancy as part of emergency treatment, even in a state that now bans the procedure.

But now that new guidance is facing its first two legal tests as lawsuits in Texas and Idaho head to court. The outcomes in either case could have major implications for how physicians understand state abortion laws, whether they can provide abortions in emergency situations even in states that have banned it, and what kind of care pregnant patients can expect in their home states.

The first case comes from Texas, which sued the federal government last month to block the guidance, arguing it amounted to an “abortion mandate” that unlawfully tries to preempt the state’s near-total abortion ban. The initial hearing in that case occurred on Aug. 18. Separately, the Biden Administration’s Justice Department filed a lawsuit against Idaho, which has an abortion law that leaves doctors facing criminal penalties for providing abortions under any circumstances, including when the mother’s life is at risk. The Idaho case is the first time the Biden Administration has taken proactive steps to block a state’s abortion ban since the fall of Roe. The first hearing in that case is scheduled for Aug. 22. Both state laws are set to take effect Aug. 25, so the cases could move quickly through the courts before then— and may get appealed to higher courts before a final resolution.

At issue is the Emergency Medical Treatment and Labor Act (EMTALA), the law on which the Biden Administration based its July guidance. The Administration has been scrambling to respond to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, and has been wary of taking actions that could lead to court decisions that would limit executive authority. And while the President has repeatedly said that Congress must act to protect abortion, Democrats lack the votes to pass such legislation in the near future. The Administration has been hoping to use the EMTALA guidance to protect some abortion access in the absence of federal legislation, so what the courts in decide in Texas and Idaho could enhance or severely curtail the executive branch’s ability to weigh in on the issue in restrictive states.

Here’s what you need to know about how these two cases could affect abortions in emergency situations.

The federal health care law

EMTALA wasn’t originally about red and blue state policy divides. When the law took effect in 1986, it was meant to ensure that patients could get emergency care regardless of their ability to pay.

The law states that emergency departments must screen patients, and if the patient is in an “emergency medical situation,” the staff is required to provide treatment that will stabilize them. These situations are defined as something that would put the health of the patient in “serious jeopardy” or impair bodily functions unless treated.

When it comes to pregnancy, “we’re talking about things like ectopic pregnancy, and incomplete miscarriages where there’s a risk of hemorrhage, and preeclampsia and HELLP syndrome,” says Lindsay Wiley, a law professor and director of the Health Law and Policy Program at UCLA Law. “We’re not talking about a run of the mill elective abortion situation.”

Texas argues that federal law does not allow doctors to provide abortions now banned under its state laws, and that the Biden Administration wants to “transform every emergency room in the country into a walk-in abortion clinic.” But the Biden Administration, as well as liberal states and medical groups that filed briefs with the court, argue that’s not what the federal government is trying to do. The guidance has not added anything new to federal law, they say, but rather reminded hospitals and physicians that the Administration will enforce the law with respect to abortions. Hospitals that violate EMTALA can lose access to Medicare payments, which would be a major problem for their financial sustainability.

“EMTALA is the foundation of emergency medicine in this country for more than 35 years. It has been supported broadly by ideologically diverse coalitions and people,” says Skye Perryman, president and CEO of Democracy Forward, which is representing a coalition of medical groups that filed briefs supporting the Biden Administration in the Texas and Idaho cases. “The federal government is seeking to enforce a longstanding law that pregnant people and all people are entitled to required and urgent emergency care.”

What counts as a health exception?

Right now, abortion laws in all states allow abortions when the pregnant person’s life is at risk. But these exceptions are often not clearly defined, and physicians have been forced to navigate vague laws with the threat of criminal penalties when trying to determine if a pregnant person is in an emergency situation.

Idaho’s trigger ban, for example, which is set to go into effect Aug. 25, has exceptions for the risk of death to the pregnant person or when the pregnant person has reported rape or incest to law enforcement. But those exceptions can only be used as a defense in a criminal trial after someone has charged the doctor with violating the law—there’s no judgment doctors can make beforehand that will indemnify them if they provide the procedure.

EMTALA has a broader definition of what would count as stabilizing treatment, including policies that have been developed to ensure patients can be reasonably transferred or discharged. But Idaho argues there isn’t a significant distance between its legal exceptions and what EMTALA would consider a medical emergency. “The argument is strong that the federal law preempts contrary state laws that come into conflict,” says Elizabeth Sepper, a professor at the University of Texas at Austin School of Law. “Idaho ended up arguing that there’s no conflict between the Idaho law with this super narrow exception and the instances where EMTALA would require doctors to provide abortions, which are also a relatively narrow range of circumstances, but broader than just life saving.” In other words, Idaho argues its law still allows for the appropriate exceptions under EMTALA, so its enforcement shouldn’t be limited, as the Biden Administration is arguing.

Read More: Anti-Abortion Pregnancy Centers Are Collecting Troves of Data That Could Be Weaponized Against Women

In Texas, the arguments are in some ways reversed. Texas’ law does include exceptions for the health of the pregnant person, though physicians have said those are still vague. Texas is pushing to block the EMTALA guidance on abortions, so there the Biden Administration has argued that EMTALA is not requiring Texas hospitals and physicians to do anything contrary to its state law.

Texas is mainly saying that the Biden Administration’s guidance would unlawfully force doctors in the state to provide abortions in situations that would leave them exposed to criminal penalties under the state’s laws. Texas last year enacted a ban on abortions after about six weeks that is enforced by private civil lawsuits, and its trigger ban outlawing nearly all abortions and adding criminal penalties is set to go into effect Aug. 25.

If Texas succeeds, the underlying EMTALA law would stay in place, but it would be a blow for the Biden Administration’s strategy on protecting reproductive health. “They want the guidance out there,” Wiley says. “The guidance is meant to be a kind of warning shot, because hospitals are currently actively in this process of working out their internal policies and procedures about how are they going to comply with the Texas state law.”

In Idaho, the stakes could be even more immediately felt by patients. If the Biden Administration succeeds in challenging the state’s law, it could guarantee that pregnant patients in Idaho will have access to abortions in emergency situations. This still wouldn’t allow the vast majority of abortions to happen in the state, but it would be meaningful for patients in Idaho and elsewhere facing significant health risks. “It would mean that EMTALA shapes the boundaries of where states can go with their abortion bans, that they can go so far and quite far, but that abortions in emergency situations will continue to need to be available,” Sepper says.

‘Just the beginning’

Whatever the outcome in these cases, the first EMTALA lawsuits are “just the beginning,” says Greer Donley, a law professor at the University of Pittsburgh who focuses on abortion rights.

The Texas case serves as a potential test for other conservative states to challenge the Biden Administration’s guidance or actions on abortion, Donley says. If the judge enjoins the federal guidance, it could set precedent or spark copycat suits.

On the other hand, the Idaho case presents an experiment for the Biden Administration. Reproductive rights advocates have encouraged the Biden Administration to take more action to protect abortion access, particularly around EMTALA, and the Idaho case could indicate whether that will be an effective approach.

Regardless of how long the cases take to reach a conclusion or which side prevails, some legal experts say the lawsuits are still a good messaging strategy for the Biden Administration. “These lawsuits allow the Biden Administration to continually highlight a very unpopular part of abortion bans right now,” Donley says, “which is that they’re harming maternal health.”

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Write to Abigail Abrams at abigail.abrams@time.com