Physician organizations are warning that pregnant patients will suffer and potentially die, or experience life-long complications, if the 5th U.S. Circuit Court of Appeals does not vacate a preliminary injunction that stops physicians from providing emergency abortion care when they deem it medically necessary to stabilize a patient.
In the wake of the Dobbs decision last year, the U.S. District Court for the Northern District of Texas issued a preliminary junction to temporarily block federal government guidance that says the Emergency Medical Treatment and Active Labor Act (EMTALA) protects physicians and other health professionals who provide abortion care in emergency situations to save the life or health of the patient.
A 2021 Texas law bans nearly all abortions after about six weeks’ gestation and lets private parties file civil lawsuits against anyone performing or “aiding and abetting” an abortion.
In an amicus brief, the AMA, American College of Emergency Physicians, American College of Obstetricians and Gynecologists, American Academy of Pediatrics, American Public Health Association and Society for Maternal-Fetal Medicine urge the appellate court to vacate the preliminary injunction in the case, State of Texas et al. v. Becerra et al.
The organizations explained how EMTALA has been understood and applied in emergency medicine since it was enacted in 1986 and described the role that abortion care plays in providing the stabilizing treatment EMTALA requires.
“If a doctor concludes that abortion is the necessary stabilizing treatment, then withholding that care is—and always has been—directly contrary to EMTALA’s mandate and to the bedrock principles of medical ethics,” the brief says. “The district court was thus incorrect to suggest that the guidance sets out new requirements or interprets EMTALA in a novel fashion. … It simply recognizes the reality of emergency medicine and reassures doctors that they can follow their professional obligations and federal law without running afoul of state laws.”
Any other interpretation amounts to a “novel, dangerous and unworkable constraint on how emergency medicine is practiced.” In fact, the AMA and others told the court, the impact of state laws that restrict physicians’ judgment in emergency medicine are already being seen.
One early analysis found that after Texas laws banned abortion after cardiac activity and criminalized providing abortion medication after seven weeks even in emergency situations, maternal morbidity nearly doubled for cases involving pre-term premature rupture of the membranes at two Texas hospitals.
3 ways lower court got it wrong
The brief tells the 5th U.S. Circuit Court of Appeals that the federal district court misunderstood these three key aspects of EMTALA and how emergency medicine is practiced in its decision to issue a preliminary injunction.
There is no difference between “emergent” and “likely to be emergent” conditions. The district court ruled that the federal guidance was broader than EMTALA and conflicts with Texas law because “‘the Guidance says abortion may be required for emergency medical conditions that are likely to become emergent, whereas [Texas law] requires the condition to be present.’”
But the brief explains that this is incorrect because there is “no meaningful distinction between an emergency medical dentition that is currently emergent and one that is ’likely to become emergent.’”
The guidance from the government does not require physicians to perform, assist in or refer patients for elective abortions. The district court incorrectly credited the plaintiff’s concern that the guidance requires physicians to participate or help in elective abortions, physicians tell the court.
The brief says EMTALA and the guidance are clear that if an individual physician treating a patient doesn’t believe an abortion is required to stabilize the patient, they don’t have to provide it.
An incomplete medication abortion is no different from any other condition that may require an emergency intervention. Here, the amici say the district court “blatantly misconstrued the Guidance’s statements about incomplete abortions and would effectively discriminate against emergency patients based on the source of their condition.”
For example, car crash patients aren’t asked if they were speeding and gunshot wound patients aren’t asked what they were doing when they received their wound. “Medical ethics do not permit such dangerous practice, and EMTALA would preempt any state laws that would require it,” the brief says in asking the court to vacate the preliminary injunction.
