United States Court of Appeals for the Fifth Circuit Issues Another Restriction on Reproductive Rights and Federal Agency Action

In 1986, Congress passed the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd (“EMTALA”) to ensure that all individuals with a emergency medical condition (“EMC”), particularly pregnant women, receive a medical screening examination (“MSE”) and stabilizing medical treatment before being transferred to another hospital.  While EMTALA applies to all patients, the original impetus for EMTALA was to protect uninsured pregnant women with an EMC from being transferred to another hospital before receiving stabilizing medical treatment. Prior to the passage of EMTALA, many women and or their unborn children suffered serious bodily injury or death because they could not receive the emergency medical treatment that they needed.

EMTALA is widely understood by hospitals that participate in Medicare to require that a MSE be performed by a qualified clinician for the purpose of determining whether an EMC exists and if so, providing stabilizing treatment before the patient is transferred to another hospital.  To further clarify the EMTALA requirements, the Centers for Medicare and Medicaid Services (“CMS”) provides additional EMTALA guidance through Interpretive Guidelines.  Moreover, the applicable CMS regulations and guidance make it very clear that in stabilizing a patient, the hospital must ensure that no “material deterioration of the condition is likely, within reasonable medial probability….”    

Shortly after the passage of Dobbs v. Jackson Women’s Health Organization, 142 S.Ct.2228 (2022), the Secretary of Health and Human Services issued additional clarifying guidance to health care providers regarding the stabilization of a patient to make it very clear that, “the federal EMTALA statute protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.”  The Secretary further clarified in its guidance that, “[s]tabilizing treatment could include medical and/or surgical interventions (e.g., abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy etc.), irrespective of any state laws or mandates that apply to specific procedures.” More specifically, with respect to the issue of abortion, the Secretary stated that, “[w]hen a state law prohibits abortion and does not include an exception for the life of the pregnant person---or draws the exception more narrowly than EMTALA’s emergency medical condition definition---the state law is preempted.”

Contrary to the Secretary’s guidance, on January 2, 2024, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) in Texas v. Becerra, No. 23-10246, 2024 WL 20069 (5th Cir. Jan. 2, 2024) ruled that EMTALA does not preempt the restrictions under Texas law with respect to the performance of an abortion.  More specifically, the Fifth Circuit ruled that EMTALA does not preempt “The Texas Human Life Protection Act”, which prohibits abortions unless the pregnancy “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”    

Notably, just a few weeks prior to the Fifth Circuit’s ruling, the Texas Supreme Court overturned a temporary restraining order that had granted a Texas woman permission to obtain an emergency abortion on the basis that the woman’s physician did not show that the woman qualified for a medical exception to the state’s abortion ban despite numerous visits to her hospital’s emergency department, the non-viability of her unborn child and the fact that continuation of her pregnancy would permanently damage her reproductive health.  Based upon the Texas developments, there is significant doubt as to whether a physician can or will be willing to perform an abortion in Texas when the mother is experiencing an EMC.

In its ruling, the Fifth Circuit concluded that because Congress did not explicitly state whether EMTALA requires physicians to provide abortions in connection with stabilizing treatment, the Texas law regarding abortions is not preempted by EMTALA because medical treatment is “historically subject to police power of the States, not to be superseded unless that was the clear and manifest purpose of Congress.”  It is indisputable that the clear and manifest purpose of Congress with respect to EMTALA was that medical decision-making should be left to physicians.  If not, is physician decision making now subject to the “police powers” of the State?  Does EMTALA have to explicitly instruct a physician to perform CPR on a patient?  Given the reasoning of the Fifth Circuit, the floodgates appear to be open for some states to disregard federal law to serve either religious or political purposes while sacrificing privacy, reproductive rights or other medical decision making.

Notwithstanding, one can expect that the U.S. Department of Health and Human Services Office of Inspector General will pursue enforcement actions against hospitals that violate EMTALA.