The question that could help shape abortion access across America
If a doctor believes that an abortion is medically necessary, does he or she have to perform one?
That question is at the center of several major court battles right now. It’s being debated in hospital boardrooms. And it’s set to help define abortion access across America.
The White House has insisted that hospitals and doctors must perform those abortions, or face fines, potential lawsuits and even blacklisting from federal health programs.
That argument — an attempt by Biden officials to preserve some abortion access after the Supreme Court overturned Roe v. Wade in June 2022 and state abortion bans kicked in — rests on how Biden administration lawyers interpret a longstanding emergency-care law.1
But conservative lawyers, including the Texas attorney general, have insisted that the Biden administration is wrong — that there’s nothing in the emergency-care law that obligates abortions, even if physicians deem them warranted. Physicians and hospitals must follow state abortion restrictions or face prosecution, these conservatives have said.
A federal appeals court on Tuesday agreed with Texas: the national emergency-care law “does not mandate any specific type of medical treatment, let alone abortion,” the Fifth Circuit concluded. Moreover, the three-judge panel said that the Biden administration flouted the normal process of coming up with federal rules when it rushed to issue its abortion guidance.2
Here’s the story on the court’s ruling, via me and Caroline Kitchener at the Washington Post.
The physicians caught in the middle
Physicians around the country — including in Texas — have been begging for more guidance on when abortions are allowed under state bans, as Caroline and I wrote last year.3
Many say they’re confused by dueling instructions and vague legislative language.
State GOP leaders maintain that their abortion bans contain exceptions for medical emergencies, and that physicians could be prosecuted if they go beyond what’s been spelled out in state law.
The Biden administration counters that the federal emergency-care law takes precedence over any state abortion ban, and that physicians are legally obligated to perform abortions that they believe to be medically necessary.
It’s left health workers in states worried that no matter what they do, they’ll face potential punishment. And many hospitals, scared to get dragged into political fights around abortion, have been exceedingly cautious with spelling out their own policies.
As a result, some physicians have waited to perform abortions until their patients became severely ill. Other health workers have spent months trying to get answers on when certain abortions are allowed.
Hospital officials and physicians shared some of those stories with us; we uncovered more by sending records requests to dozens of hospitals.
Here’s a gift article — no paywall — to read our Washington Post investigation.
Tuesday’s court ruling seems to provide some answers about what doctors should do — but the ruling only applies to Texas, which quickly sued the Biden administration after it issued its abortion guidance back in 2022, and the other plaintiffs involved in the lawsuit.
Another decision is looming at the Ninth Circuit Court of Appeals in a lawsuit involving the state of Idaho’s abortion ban; that ruling is expected later this month.
The ultimate answer is probably months away: the issue seems bound for the Supreme Court. But that’s of little help to the hospitals, doctors and patients who have urgent questions now — and who will inevitably face decisions on emergency abortions before the Supreme Court could hear a case, let alone rule.
That law is the Emergency Medical Treatment and Labor Act, or EMTALA. The nearly 40-year-old law is well-known within health care, and it’s traditionally been invoked to ensure that hospitals don’t rebuff low-income patients, people with mental health conditions and others who turn up seeking emergency care but are at risk of being turned away.
After Roe was overturned, Biden officials concluded that many efforts sought by progressives to ensure abortion access — such as calling on Congress to pass new laws guaranteeing access to abortion, or attempting to expand the Supreme Court — would be unlikely or unworkable. That’s one reason why the White House’s current abortion strategy rests so much on EMTALA; Biden officials believe that their interpretation of the emergency-care law stands a better chance of surviving the ongoing legal challenges than some of the proposed strategies they haven’t pursued.
Caroline, the Post’s terrific abortion reporter, picked up on this emerging issue in the course of her reporting last year. You can read her detailed thread on how she began investigating and how the broader story came together.