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Patients and doctors face conflicting laws on abortion and emergency care

Every week, Dr. Kim Puterbaugh sees several pregnant patients at a Cleveland hospital who experience complications involving bleeding or infection. The OB-GYN must make quick decisions about how to treat them, including whether to remove the dead or dying fetus to protect the health and life of the mother. Leaving a fetus in place that has no chance of survival greatly increases the risk of maternal infection and permanent injury.

But now her medical decisions are complicated by Ohio’s new abortion law, which generally prohibits abortions after six weeks of pregnancy if heart activity is detected in the embryo or fetus – which can persist for months. hours or days even if a pregnancy has no chance of progressing. In light of the new law, University Hospitals Cleveland Medical Center has streamlined its system of having an administrator and legal team on call for Puterbaugh and other physicians if anyone questions whether the planned treatment is permitted by law.

Since the Supreme Court struck down the constitutional right to abortion in June, Puterbaugh said the cases put her and doctors like her in an impossible position — crushing doctors between the United States’ anti-abortion laws. Ohio and other states and federal emergency medical treatment and labor law. This 1986 law requires hospitals and doctors to provide screening and stabilizing treatment – ​​including abortion, if necessary – in emergency situations.

“It’s a challenge to balance those two things,” said Puterbaugh, president of the Society of OB/GYN Hospitalists. “But it’s not really a challenge for me because, in my mind, the life and health of the mother always comes first.”

The Biden administration argues that EMTALA trumps state abortion bans in emergency situations. On August 2, the US Department of Justice filed a federal lawsuit challenging an Idaho law that bans abortion in almost all circumstances. The suit says the law would make it a criminal offense for medical providers to comply with EMTALA’s requirement to provide an abortion, if necessary, to women facing emergency pregnancy complications.

In a July policy guidance and letter, the U.S. Department of Health and Human Services reaffirmed that EMTALA requires hospitals and physicians to provide life-saving or life-saving medical services, including abortion, in emergency situations. ’emergency. The letter refers to situations such as ectopic pregnancies, severe blood pressure spikes known as preeclampsia, and premature ruptures of the membrane causing a woman’s water to break before her pregnancy takes hold. be viable.

The guidelines pointed out that this federal requirement supersedes all state laws that prohibit abortion, and that hospitals and doctors who fail to comply with the federal mandate could face civil fines and termination of Medicare and Medicare programs. Medicaid.

There are no known reports to date of EMTALA investigations resulting from denial of emergency care in pregnancy situations.

But elected officials from states that have heavily restricted abortion disagree with the federal ruling. Texas Attorney General Ken Paxton sued the Biden administration last month to stop the federal government from using the EMTALA law to require emergency abortions. The lawsuit asserts that EMTALA does not specifically mandate particular medical procedures such as abortion.

Abortion haters say state anti-abortion laws already include adequate exceptions when a pregnant woman’s life or health is at risk. John Seago, president of Texas Right to Life, said one of the laws in Texas specifies that treating ectopic pregnancies or miscarriages is not prohibited. In addition, the law defines a medical emergency permitting abortion as a condition in which a woman is at serious risk of “substantial impairment of a major bodily function.”

Seago blamed the media and medical associations for deliberately confusing the laws. “The law is very clear,” he said.

Legal wrangling aside, in practice doctors and hospital lawyers say much hinges on the interpretation of vaguely worded exceptions in state abortion bans, and this is further complicated by the existence conflicting laws, such as those prohibiting abortion based on cardiac activity. And medical providers don’t want to risk criminal prosecution, fines and loss of their license if someone accuses them of breaking these confusing laws.

Louise Joy, an Austin, Texas attorney who represents hospitals and other health care providers, said her clients may be being too cautious, but that’s not surprising. “I try to encourage them to do the right thing, but I can’t assure them that they won’t take any risks,” she said.

A lot depends on when a pregnancy-ending complication is considered an emergency, a difficult time to define. Some women in Missouri came to the hospital emergency department with mild cramping and bleeding and turned out to have an ectopic pregnancy that had not yet ruptured, colleagues told Dr Alison Haddock, a Houston emergency physician who chairs the American College Board of Trustees. emergency physicians. The standard treatment is to provide the drug methotrexate, which can terminate a pregnancy.

“You’re stable until it breaks, then it becomes unstable,” she said. “But how unstable do you need to be? The woman’s life is not yet clearly in danger. It is not clear if EMTALA applies. There will be a lot of gray areas that will make it very difficult for emergency physicians to do what’s right for patients without breaking any laws.

Doctors and hospital lawyers are hoping for clearer federal guidelines and guarantees of protection against state attorneys who may oppose their medical judgment on political grounds.

“That’s when we need the federal government to step in and say, ‘Doctors, you must provide the standard of care, and we will prevent the prosecution of anyone who follows proper medical practices and does what they must for patients,” Joy said.

They also hope the federal government will proactively investigate complaints from individuals whenever appropriate emergency medical care may have been denied due to the new laws. The New York Times reported last month that a 35-year-old Dallas-Fort Worth-area woman was denied a dilation and evacuation procedure for her first-trimester miscarriage, despite experiencing pain and discomfort. intense bleeding. The hospital reportedly sent her home advising her to return if she was bleeding profusely. The hospital did not respond to a request for comment for this article.

“If a hospital has a policy that when the correct medical procedure for a woman in the ER is abortion but doctors cannot do it, that is a violation of EMTALA that CMS should find actionable,” said Thomas Barker, a former general. attorney for the Centers for Medicare & Medicaid Services who advises hospitals on EMTALA compliance issues.

In another potential case of EMTALA, Dr. Valerie Williams reported that after Louisiana implemented its near-total abortion ban with criminal penalties last month, her New York-area hospital Orleans prevented her from performing a dilation and evacuation procedure on a pregnant patient whose water broke at 16 weeks. The patient was forced to go through a painful labor of several hours to deliver an unviable fetus, with heavy blood loss.

“This was the first time in my 15-year career that I couldn’t give a patient the care they needed,” Williams wrote in a court affidavit in a case seeking to block the health care law. state abortion. “It’s a parody.”

But CMS often relies on state agencies to investigate alleged EMTALA violations. This raises questions about how seriously these investigations will be conducted in states where authorities have adopted strict limits on all medical services they deem abortion-related.

Last month, the Texas Medical Association warned that hospitals were urging doctors to send pregnant patients with complications home, wait for them to expel the fetus – known as expectant management – ​​rather than have them discharged. treat to the hospital to remove the fetal remains, according to The Dallas Morning News. In a letter to the Texas Medical Board, the medical association said delayed or denied care risks compromising patients’ future reproductive capacity and poses a serious risk to their immediate health.

A study published last month in the American Journal of Obstetrics and Gynecology found that after Texas implemented its strict abortion restrictions in September, patients with pregnancy complications experienced healthy outcomes. worse than similar patients in states without abortion bans. Of those treated with expectant care at two major Dallas hospitals, 57% suffered serious complications such as bleeding and infections, compared to 33% who chose immediate pregnancy termination in other states. .

Obstetrician-gynecologists and emergency physicians say they expect to be on the phone frequently with attorneys for advice on complying with state anti-abortion laws when they see pregnant patients with emergency and near-emergency complications.

“It will endanger women’s lives, there’s no doubt about it,” Puterbaugh said.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with policy analysis and polls, KHN is one of the three main operating programs of the KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization providing information on health issues to the nation.