EXPLANATION: Does the health care law protect emergency abortion?

EXPLANATION: Does the health care law protect emergency abortion?

WASHINGTON — The Biden administration filed its first legal challenge to the state’s abortion ban since the end of Roe v. Wade, arguing that Idaho’s restrictive abortion law leaves doctors facing criminal penalties for providing abortion-related medical care to women in life-threatening medical situations.

The Justice Department may have a strong case in the Idaho case filed under the federal health care law, but even if they win, it won’t allow full access to abortions there, legal experts said. However, it could give doctors more freedom to provide an abortion in an emergency or a situation that could become one.

But Texas is already pushing back with another lawsuit over the same federal statute, arguing that the federal health law does not allow for abortion-related care prohibited by state law.

Here’s a look at how the dueling cases could affect the tense medical and legal landscape after the Supreme Court struck down a nationwide abortion right:


The Emergency Medical Treatment and Labor Act, or EMTALA, went into effect in 1986 and was intended to ensure that people could get emergency care regardless of their ability to pay. He has been at the center of legal battles before.

In the 1992 Baby K case, for example, a court sided with the parents, who said federal law required a hospital to continue treating a baby born without a cerebral cortex, even though doctors said it would be medically futile. point of view and cited state law in support, said Lindsey Wiley, professor of law and director of the Program in Health Law and Policy at UCLA Law.

Hospitals that violate the emergency care law can lose access to Medicare payments, a major blow.

The Idaho lawsuit comes after the U.S. Department of Health and Human Services issued similar guidelines, saying hospitals must provide abortion services in emergencies or situations that may become emergency.


Many abortion bans, including the law set to take effect in Idaho, were written to allow abortions if a pregnant woman’s life is at risk. But they don’t always say exactly what that means, and some doctors say the laws are so vague that it’s hard to know when the exceptions apply. It should be noted that Idaho’s exception is written so that it can only be used as a defense in a criminal trial after the doctor has been charged.

The deep uncertainty and possible criminal charges against doctors already have profound implications in reproductive medicine and other areas of medical care.

“The risk of prosecution is one of the most extreme, most severe things the law can do. It has a huge chilling effect,” Wiley said. “It’s not surprising that clinicians, if they focused only on state law, would be hesitant to do what they’ve always done to provide a standard of care.”

The federal Emergency Medical Services Act, by contrast, has a broader definition of emergency care and stabilization and a specific set of rules and policies developed over three decades.

Idaho Gov. Brad Little, a Republican, said the Supreme Court had given states the only option to regulate abortions and he would defend the law against federal overreach.


Federal law takes precedence over state law under the U.S. Constitution, and that includes the federal emergency law, said Alison Hoffman, a law professor at the University of Pennsylvania School of Law and an expert on health care law.

“That’s a pretty strong argument,” she said. “But I think this case will go to the Supreme Court, and it’s really hard to predict what will happen when it gets there.”

James Blumstein, an expert on health law at Vanderbilt University, said the emergency law, tied to a federal spending program, is fundamentally different from state abortion bans that carry criminal penalties. Meanwhile, the federal law applies mostly to hospitals, while abortion bans generally target doctors. “I could not advise a physician to violate state law under these circumstances,” he said in an email.

If the Justice Department wins, it would likely allow abortion care in a wider range of circumstances β€” but there would still likely be a large legal gray area for doctors and hospitals. β€œIt’s really soft territory. What does it mean to have a condition such that the lack of immediate medical attention could reasonably be expected to put someone’s health in serious jeopardy?” Hoffman said.

Many other lawsuits are pending in Idaho and the rest of the country over abortion. Democratic President Joe Biden has also taken other steps to allow people to continue to get abortions, including signing an executive order on Wednesday aimed in part at making it easier for women to travel interstate to get an abortion.


Texas sued the federal government last month over guidelines from the Department of Health and Human Services under the same federal law. The state argues the guidelines ignore the state legislative process and leave doctors and hospitals vulnerable to losing their licenses or being charged with crimes under state law.

Texas officials also say the administration wants to “transform every emergency room in the country into an abortion clinic” and the federal emergency law should make doctors consider how to save “the life or health of an unborn child.”

A nearly comprehensive abortion law, prompted by the threat of civil lawsuits, went into effect in Texas last year, and another law carrying criminal penalties is set to take effect in the coming weeks.

Those arguments could appeal to judges there, said Elizabeth Sepper, a professor at Texas Law School in Austin. If the Biden administration prevails, it would apply in urgent but fairly narrow circumstances.

“EMTALA does not create a right to treatment or a right to circumvent the abortion ban, but it will give emergency room doctors some reassurance,” she said.

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