Part 2: Dobbs, EMTALA, and the Intersection of State and Federal Laws
As part of MMM’s commitment to its hospital and physician clients, MMM is publishing a series of articles discussing the practical legal effects on MMM’s clients following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization which reversed Roe v. Wade and returns regulation of abortion access to the States.
Part 2 of this series addresses the intersection between EMTALA and state abortion laws and the broader relationship between federal and state laws with a specific focus on EMTALA. As this is an area of rapid development, hospitals and providers will have to operate with flexibility in an evolving landscape of both state and federal laws.
The Intersection of Federal and State Law: the Supremacy Clause and Preemption Doctrine
An analysis of the interplay between the requirements of EMTALA and state law provisions begins with the Supremacy Clause of the United States Constitution and the preemption doctrine, which is derived from the Supremacy Clause. The United States is governed by federalism, a governmental structure with two levels of government in which each level has sovereignty over different policy matters and geographic areas. This “dual sovereignty” is established in the United States Constitution, which requires that states surrender certain powers to the federal government while retaining others. This is primarily accomplished through the Supremacy Clause (Art. VI, Clause 2), enumerated powers (Art. I, Sect. 8), and the Tenth Amendment, which reserves powers to the states, as long as those powers are not delegated to the federal government.
Since the mid-20th century, the Supreme Court has interpreted its Supremacy Clause jurisprudence to mean that federal law preempts state law. However, preemption can be expressed or implied and is generally limited to Congressional authority and intent as states retain sovereignty under our federalist system.
Federal law expressly preempts state law when it contains explicit language to that effect. By contrast, federal law impliedly preempts state law when that intent is implicit in its structure and purpose. Because implied preemption is, by definition inferred, Congressional intent is particularly important when determining if a state law is usurped by implied preemption and the extent to which state law is preempted. When assessing whether a law is preempted implicitly, the Supreme Court has distinguished between field preemption and conflict preemption, and the type of preemption effects whether a state law is preempted in whole or in part. Field preemption occurs where federal law is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it, or where the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. In contrast, conflict preemption occurs where compliance with federal and state law is impossible (impossibility preemption) or where state law poses an obstacle to federal objectives (obstacle preemption). Respecting the provision of abortion under state law, field preemption under EMTALA does not exist. Conflict preemption, however, will exist in many jurisdictions prohibiting or limiting medical treatment when the life of the pregnant person is at stake, even if such treatment may result in the abortion of a fetus to save the pregnant person’s life.
Emergency Medical Treatment and Active Labor Act (EMTALA)
In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals, including critical access hospitals, that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented. While a patient may request a transfer for any reason, a hospital is restricted by EMTALA to transfer patients only after a physician certifies that the medical benefits of the transfer outweigh the risks.
The EMTALA statute requires that stabilizing treatment prevent material deterioration and compels hospitals and physicians to act prior to the patient’s condition declining. The course of stabilizing treatment is determined by the medical judgment of qualified medical personnel. If qualified medical personnel determine that the patient’s condition, such as ectopic pregnancy, requires stabilizing treatment to prevent serious jeopardy to the patient’s health (including a serious impairment or dysfunction of bodily functions or any bodily organ or a threat to life), the qualified medical personnel is required by EMTALA to provide the treatment.
As indicated above, the determination of an emergency medical condition is the responsibility of the examining qualified medical personnel. Emergency medical conditions involving pregnant patients may include but are not limited to: ectopic pregnancy, complications of pregnancy loss, premature membrane rupture, or emergent hypertensive disorders, such as preeclampsia with severe features. The course of treatment necessary to stabilize such emergency medical conditions is also under the purview of the physician or other qualified medical personnel. Stabilizing treatment for these conditions historically has included medical and/or surgical interventions some of which are medically considered an abortion (e.g., methotrexate therapy, dilation and curettage (D&C), removal of one or both fallopian tubes, or anti-hypertensive therapy).
Enforcement of EMTALA
The Department of Health and Human Services (HHS), through its Office of the Inspector General (OIG), may impose civil monetary penalties on a hospital or physician for refusing to provide either any necessary stabilizing care for an individual presenting with an emergency medical condition that requires such stabilizing treatment, or an appropriate transfer of that individual if the hospital does not have the capacity to stabilize the emergency condition. Under this same authority, HHS OIG may also exclude physicians from participation in Medicare and state health care programs. The Centers for Medicare & Medicaid Services (CMS) may also penalize a hospital by terminating its provider agreement, thus excluding it from Medicare. Additionally, private citizens who are harmed by a physician’s or hospital’s failure to provide stabilizing treatment may file a civil suit against the hospital to obtain damages available under the personal injury laws of that state in which the hospital is located, in addition to recouping any equitable relief as is appropriate. 42 U.S.C. § 1395dd(d)(2)(A).
EMTALA and Preemption of State Abortion Laws
CMS released guidance following Dobbs, providing that any state that has a more restrictive definition of emergency medical condition or that has a definition that directly conflicts with any definition above is preempted by the EMTALA statute.[i] Physicians and hospitals have an obligation to follow the EMTALA definitions, even if doing so involves the provision of medical stabilizing treatment that is not permitted in the state in which the hospital is located. Hospitals and physicians have an affirmative obligation to provide all necessary stabilizing treatment options to an individual with an emergency medical condition.
Scenarios where EMTALA may intersect with state abortion laws include the following:
- An ectopic pregnancy that has not yet ruptured.
- A patient’s water breaks pre-viability and failure to perform an abortion will result in sepsis.
- A patient comes to the emergency department complaining of symptoms which are typically treated by a drug that is likely to induce a miscarriage, even if the patient is not currently pregnant.
- A pregnant person is diagnosed with an aggressive cancer early in the pregnancy or cannot undergo certain cancer treatments while carrying the fetus (or where cancer treatment will likely result in a miscarriage), although only where the cancer is actively causing an emergent condition.
- A placental abruption occurs and the condition is not life threatening today but will be by next week.
Considering CMS guidance, a physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment. EMTALA’s preemption of state law could be enforced by individual physicians in a variety of ways, potentially including as an affirmative defense to a state enforcement action, in a federal suit seeking to enjoin threatened enforcement, or, when a physician has been disciplined for refusing to transfer an individual who had not received the stabilizing care the physician determined was appropriate, under the statute’s retaliation provision.
Any state actions against a physician who provides an abortion to stabilize an emergency medical condition in a pregnant individual presenting to the hospital would be preempted by the federal EMTALA statute due to the direct conflict with the “stabilized” provision of the statute. EMTALA is an affirmative defense to any state law that it preempts; however, asserting an affirmative defense necessitates that civil or criminal charges are brought against a physician or other individual asserting EMTALA as a defense. State law is only preempted to the extent that EMTALA applies. As such, hospitals and physicians would benefit from review and refinement of their current EMTALA policies and transfer agreements to ensure that patient care will be delivered in accordance with both state and federal law.
EMTALA does not directly conflict with Georgia’s HB 481, which permits physicians to perform abortions where the pregnant person’s life is in danger or where failure to do so would result in grave bodily injury. EMTALA does directly conflict with laws that prohibit abortions in states that do not have a life or health of the pregnant person exception.
Notably, EMTALA’s preemption of state laws is not a new concept that CMS has raised post-Dobbs. CMS has been enforcing areas where EMTALA preempts state laws for many years, with the largest two EMTALA settlements in history resulting from areas where hospitals followed state civil commitment laws but violated EMTALA in doing so. In this connection, in its Interpretive Guidelines, CMS has long stated that notwithstanding the existence of a state law requirement directly conflicting with EMTALA requirements, the state law will not be a defense to an EMTALA violation.[ii]
Other instances of conflict between EMTALA and state laws have largely involved matters of procedure and whether a claim could be brought when a state law offered immunity from suit. In these situations, courts have compared the explicit requirements of EMTALA and state law and allowed liability to attach unless requirements are mutually exclusive. When possible, courts seek interpretations where both EMTALA and state law can be applied.
On July 14, 2022, the Attorney General of Texas sued the U.S. Department of Health and Human Services, claiming that the agency’s efforts to protect federal abortion access via EMTALA is a violation of state sovereignty in the wake of Dobbs. The Attorney General is asking a Texas judge to rule that EMTALA and the guidance HHS released regarding EMTALA and abortion access is an unconstitutional attempt to codify a federal right to abortion where none exists. Texas law currently criminalizes performing an abortion except if the pregnant person’s life is at risk. However, what is considered an “emergency” under Texas or any other states’ law is unclear. If a court is able to proactively answer questions about concurrent applications of EMTALA and state law, it could provide much needed clarity to abortion providers, though application to Georgia abortion providers is limited under HB 481. MMM will continue to track this litigation and provide guidance to its provider clients as more information becomes available.
For specific questions about the effects of Dobbs or other questions related to particular circumstances and/or policy development, please contact a member of the MMM healthcare practice group.
[i] Centers for Medicare & Medicaid Services, Reinforcement of EMTALA Obligations Specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (Updated July 2022) https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/reinforcement-emtala-obligations-specific-patients-who-are-pregnant-or-are-experiencing-pregnancy-0.
[ii] Centers for Medicare & Medicaid Services, State Operations Manual, App’x V at p. 40, 61 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_v_emerg.pdf.