When pregnancy emergencies collide with state abortion bans

Although the United States does not guarantee health care as a right, federal law mandates that hospitals cannot deny anyone lifesaving emergency care. However, a new study finds that restrictive state abortion laws may affect frontline emergency care despite federal protections—possibly hindering access to timely screening and treatment in pregnancy-related emergencies.

The 1986 U.S. Emergency Medical Treatment and Labor Act (EMTALA) requires all Medicare-participating hospitals to screen every emergency department patient and to provide stabilizing treatment.

“EMTALA is written to defer to clinical judgment: It requires hospitals to stabilize emergency conditions using the standard of care, regardless of the type of care needed,” says Liana Woskie, assistant professor of community health at Tufts University and the study’s lead author.

“For pregnant patients, stabilization may mean ending a pregnancy when it presents a serious threat to the patient’s health,” she continues. “When state laws narrow the circumstances in which clinicians feel safe intervening, it can delay essential care, which directly conflicts with Americans’ right to timely emergency care.”

Both before and following the overturn of Roe v. Wade, U.S. state laws regarding abortion have varied widely, notes Woskie. Some states permit abortion only to prevent death of a pregnant patient. Other state abortion bans include a health exception that allows care when continuing the pregnancy would cause serious harm to a patient, such as severe bleeding, infection, or loss of fertility.

This new analysis of federal enforcement records found that states with abortion bans that lack an exception for patients’ health saw what the researchers say is a substantial increase in pregnancy-related violations of EMTALA.

These violations—which carry steep fines for hospitals and providers and can lead to termination of a hospital’s Medicare agreement and civil lawsuits—result from investigations of complaints filed with the U.S. Centers for Medicare & Medicaid Services (CMS).

Complaints can be filed by anyone. But Woskie explains they are most often submitted by health care workers who witness a failure to deliver appropriate emergency care and, in fewer instances, patients or their families who say they were not treated appropriately under the law. CMS and state officials jointly review EMTALA complaints, often relying on state surveyors to investigate. It can take weeks or even months for CMS to ultimately determine whether a violation occurred.

For the study, which published in the journal JAMA Health Forum, Woskie and her collaborators at Tufts and University of Vermont analyzed every EMTALA violation from 2018 through early 2023. The research employed a “difference-in-differences” design, which is a statistical method used to estimate the effect of a policy or event by comparing changes over time between a group that’s affected by the policy and a group that isn’t.

After obtaining the EMTALA  enforcement records via the Freedom of Information Act from CMS, the team compared those from six states with abortion bans that allowed no health exception for the pregnant patient—Idaho, Kentucky, Louisiana, Mississippi, Oklahoma, and Texas—to a control group of 34 states plus Washington, D. C., all of which had broad mental and physical health exceptions that would allow for abortion. The researchers also adjusted for shifts in states’ emergency patient volume.

The study found there were an additional 1.18 pregnancy-related violations of EMTALA per quarter in those states on average after the bans took effect.  

“This works out to roughly five extra EMTALA violations per state per year,” says Woskie. “Each violation represents a hospital formally breaking federal law. And even though the cases are rare, each reflects a confirmed case in which a patient did not receive the emergency care they were entitled to.”

Woskie explains that the overall increase was not evenly distributed across states. Texas—where a restrictive abortion policy took effect earlier than in the rest of the country—showed the clearest early signal of rising pregnancy-related EMTALA violations.

The other five states with no-health-exception policies exhibited a more modest upward trend after Roe v. Wade was overturned in June 2022. 

Troubling Uncertainty

The study references qualitative research that shows rising hesitancy among clinicians in treating general pregnancy-related emergencies under restrictive state abortion laws, as well as legal literature articulating concerns that state laws violate EMTALA.

But until now there has been little empirical evidence on how the conflict is playing out in practice.

The study also analyzed infraction types and reported that a significant post-ban rise in medical screening examination and general compliance citations drove the increases in pregnancy-related EMTALA violations. The authors noted that this points to possible breakdowns very early in the emergency-care-seeking process, when evaluation and triage should occur.

The findings suggest that in the face of abortion bans with no health exceptions, emergency departments may be behaving more conservatively. “When doctors hesitate, diagnosis may be delayed, conditions can worsen, and the very harms EMTALA was designed to prevent become more likely,” says Woskie.