Post Roe: Women still have the right to emergency medical treatment
The recent overturn of Roe v. Wade took away a woman’s constitutional right to abortion. But it didn’t take away her right to life-preserving health care, or my right as a physician to provide that care. Pregnancy is a medical condition. As an emergency room physician, I see medical complications that women endure throughout their pregnancies including serious and life-threatening bleeding and ruptured ectopic pregnancies, as well complications around childbirth like high blood pressure, seizures, heart problems and infections, all of which can pose serious threats to a woman’s life. Pregnancy can also result in lost work and pay for women when complications force them to remain on bed rest, unable to go to work let alone care for other family members.
By taking away a woman’s right to choose to terminate a pregnancy, our country is not only forcing women who may not want or be able to bear a child to do so — we are putting those same women at risk of pregnancy-related medical problems whose consequences can range from lost wages to death. The U.S. has the highest maternal mortality rate of any developed country, more than double that of most other high-income countries. Non-Hispanic Black women have three times this risk, and women over age 40 have almost 8 times the risk of women who are under 25. Maternal death rates in the U.S. have been rising since 2018, and it is within this context that our country will now also become the only country to restrict, not increase, access to abortion apart from Nicaragua.
Fortunately, one thing all women do have a right to under federal law is to seek emergency medical treatment. The federal emergency medical treatment and labor act (EMTALA) means that all people — including pregnant women — have the right to a medical screening exam, which includes stabilizing treatment, in an emergency department. Our job as physicians is to provide the highest quality emergency care for all of our patients, and in this age of restricted access to abortion, we anticipate that more women will come to us not only with complications stemming from illegal abortions, but also seeking care after unprotected intercourse, sexual assault and to evaluate early pregnancies.
Patients should have a right to privacy when undergoing medical treatment based on the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which is supposed to protect sensitive patient health information from disclosure without the patient’s consent. Yet, since Roe v. Wade was overturned, pregnant women – in states that have allowed trigger laws to take effect have been forced to continue their pregnancies even when their lives have been in grave danger. Disturbingly, the doctors’ determination that their patient was facing a life-threatening situation wasn’t good enough for their laws to permit termination — instead, the opinions of hospital administrators and lawmakers uninvolved with the patient’s care were sought out, seemingly in violation of HIPAA’s patient privacy laws.
On July 11, the Centers for Medicare & Medicaid Services (CMS) clarified that EMTALA overrides state laws related to the medical screening examination, stabilizing treatment and transfer requirements. Under EMTALA, if a physician believes that an abortion is needed to stabilize a patient with an emergency medical condition, this treatment must be provided regardless of state law. It also states that the physician or other qualified medical personnel determines what is and is not an emergency medical condition. EMTALA also protects physicians who perform an abortion in order to treat a pregnant woman’s emergency medical condition from legal action by the state. Unfortunately, EMTALA does not protect against a hospital or physician being sued, and in the state of Texas, a lawsuit has already been filed that challenges EMTALA’s protections for abortion care.
To be sure, emergency physicians are not abortion providers, and we will rely on our OB/GYN colleagues to work with us when the life of a pregnant woman is in danger. Physicians and their hospitals must fight to assure that EMTALA continues to offer the protections it was designed to provide. For politicians and lawmakers who propose to deny care for gravely ill pregnant women in need of emergency abortions, or who try to persecute treating physicians who are simply doing their job, the courts must make it clear that EMTALA is pre-emptive over state laws that may be more restrictive.
Patients have a right to privacy under HIPAA, and physicians have not only a right, but an obligation, to provide unrestricted emergency medical care under EMTALA. If you’d like to weigh in further, go to medical school.
Dr. Maria C. Raven (MD, MPH, MS, FACEP) is a practicing emergency physician and the chief of emergency medicine at UCSF Medical Center. She is professor and vice chair in the UCSF Department of Emergency Medicine. She researches the intersection of medical, behavioral and social needs in the emergency department.