The U.S. Supreme Court pictured on September 28, 2020. Congressional Democrats have called for ethics reforms for the court in the wake of recent controversies. Photo by Al Drago | Getty Images
With the U.S. Supreme Court expected to decide this month whether federal law protects emergency room abortions — including where the procedure is banned — doctors in states with abortion on the ballot this November urged the high court to preserve access.
“As physicians we’ve taken an oath to care for our patients and ensure their best outcomes and do no harm. These bans directly oppose our oaths and the standards of science-based, data-driven medical care,” said Arizona’s Dr. Hiral Tipirneni, an ER doctor in Glendale, during a June 14 online news conference hosted by the Committee to Protect Health Care, a left-leaning group whose membership includes more than 20,000 doctors and health care advocates.
In April, the Biden Administration argued that a near-total abortion ban in Idaho, which criminalizes doctors for performing an abortion except in cases of rape or incest or when women face life-threatening complications, violates the Emergency Medical Treatment and Labor Act.
The law, commonly referred to as EMTALA, requires hospitals that participate in Medicare (which is the vast majority of them) to provide patients facing critical health conditions with stabilizing care before discharging or transferring them. A ruling is expected by the end of June but it’s unclear in which direction the court will move, as the justices appear split on the issue.
The case has the potential to further narrow abortion access in states with restrictive laws, including in Arizona, which is currently under a 15-week ban, with no exceptions for rape or incest. A near-total ban from 1864 that threatened doctors with prison time for performing abortions for any reason other than saving a woman’s life was briefly in effect in 2022 until a court ruling blocked it.
An attempt to revive that Civil War-era law was thwarted by Democrats in the state legislature who successfully repealed it and Arizona Attorney General Kris Mayes, who used legal maneuvers to ensure that repeal has time to go into effect this fall.
There is so much uncertainty that I know there are a lot of physicians and providers that have been involved in abortion care that have fully removed themselves from doing so because of the concern of the backlash — whether it is criminal proceedings or fines or a threat to their practices.
– Arizona Dr. Hiral Tipirneni
A ballot measure headed for the November ballot seeks to enshrine abortion rights in the state Constitution up to the point of fetal viability, with ample exceptions beyond that time if the health care provider deems it necessary to preserve the life, physical or mental health of a patient. The Arizona Abortion Access Act has so far exceeded its signature requirement to qualify for the ballot and is poised to undergo the final step, signature verification, next month.
The committee sent the U.S. Supreme Court a letter in May signed by 6,000 doctors from all 50 states calling for the preservation of EMTALA.
Tipirneni said Arizona’s anti-abortion laws undermine the work of doctors, who are dedicated to helping their patients stay safe.
She added that the bans are driving doctors in Arizona out of the profession, and increasing the likelihood of women being forced to travel out of state to receive care. Access to abortion in Arizona is already severely limited, with only nine clinics in Arizona providing the procedure.
“There is so much uncertainty that I know there are a lot of physicians and providers that have been involved in abortion care that have fully removed themselves from doing so because of the concern of the backlash — whether it is criminal proceedings or fines or a threat to their practices,” she said.
Dr. Joey Adashek, a maternal and fetal medicine specialist based in Las Vegas, Nevada, where voters will consider their own constitutional protection in November, said that preserving EMTALA is more important than ever, as anti-abortion politicians move to attack the procedure across the country.
“This boils down to whether hospital emergency departments in states that ban abortions can refuse care to patients who need an abortion even if it’s to save their life,” he said. “Denying life-saving care goes against everything we believe and work for as doctors.”
And, he added, upending the protection for emergency abortions threatens to undermine the legal shield for all other emergency care. Before the federal law was approved in 1986 to mandate that doctors and hospitals ensure patients receive immediate care for critical conditions, many were turned away without help.
“Can you imagine being in an emergency health crisis, showing up at the hospital, and being told to leave?” Adashek asked. “Can you imagine being pregnant, suffering a life-threatening complication, and being told in an emergency room that there’s nothing that the doctors can do — even when there is? That will be the reality in cases and states across the country if the Supreme Court rules that EMTALA doesn’t apply to abortion care.”
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Some doctors shared stories of patients who were negatively impacted by the abortion bans they lived under, and said they feared the elimination of EMTALA protections would lead to even more women facing life-threatening conditions.
Dr. Cecilia Grande, an OB-GYN in Miami Dade County, Florida, said that women in her area would need to book a flight or drive for more than eight hours to access out-of-state care, leaving many with little recourse to resolve pregnancy complications. One of Grande’s patients was found to have an irreversible cervical dilation at nearly 20 weeks into her pregnancy.
While doctors should have been able to induce labor to lessen the woman’s pain, they were prevented from doing so by Florida’s restrictive 6-week abortion ban until she presented with a fever or a premature ruptured membrane, which risks infection.
Another woman had a blood test done to check for what was suspected to be Edwards Syndrome in the fetus, a rare genetic condition that causes multiple birth defects and usually prevents children from surviving beyond their first year. Waiting for the results of the test, which is administered only as early as 10 weeks, would take several days and even with results of the fatal fetal condition, two doctors would need to testify that an abortion was warranted and a willing hospital would need to be found to schedule the procedure — most, Grande said, are hesitant to do so.
“I want my colleagues in the emergency room to be able to act to help my patients in their moment of need. The government should not be getting in the way,” she said.
Like in Arizona and Nevada, Florida voters are also expected to consider a ballot initiative to preserve abortion access and strike down the state’s restrictive ban in November.
Missouri OB-GYN Dr. Jennifer Smith pointed out that hostile abortion laws don’t only affect women, but also the healthcare field as a whole. A recent report from the Association of American Medical Colleges found that states with abortion bans have a marked decrease in medical residency applications, with emergency medicine and obstetrics and gynecology seeing a worse decline in states with bans than in those without them.
In Arizona, the rate of emergency medicine residencies, which had already seen a 19.3% decline in the 2021-2022 application year, didn’t improve in the following years, when the U.S. Supreme Court struck down the constitutional right to abortion and the state teetered between some access and virtually no access to the procedure.
In the first full year after the Dobbs decision, residency applications for emergency medicine plummeted as much as 30% in the Grand Canyon State. The next year continued to be dismal, with a decline in applications of 15.5%.
And the number of OB-GYN applications in 2023-2024 dropped 26.4%, the worst rate in five years.
Dr. Rob Davidson, an ER doctor from Michigan, criticized the continued effort from Republican politicians and conservative judges to cut women off from abortion care. Abortion, he said, is health care, and should be treated the same as all other kinds of emergency medical interventions.
“There just isn’t another issue where politicians and judges have decided to jump in and say, ‘Well, you can treat heart attacks to a certain point. If they’re going to die, yes treat them. But if it’s just a matter of, they’ll be a little medically compromised or go into heart failure or be disabled from heart failure, well at that point you can’t do it,’” he said.
Davidson pointed out that doctors and hospitals have undergone years of training and numerous certifications to be able to provide medical care, while the politicians and judges seeking to enact restrictions against abortion have no such expertise.
“We just want to do what’s right for our patients and it’s sickening to think that a court of nine people could tell us ‘You don’t get to do that,’” he said.
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