Providers need more support in providing emergency care under new abortion bans

Applying her legal background in health policy to an examination of recent changes in state and federal abortion law in the U.S., Michelle Mello found providers are often faced with conflicting laws and inadequate guidance in making decisions. The current legal landscape “pits interests of providers against patients in a way that’s unprecedented,” she said in a recent presentation to the Clayman Institute Faculty Research Fellows.

Mello, a professor of law and also a professor of health policy, identified a contradiction between required standards of emergency care and state abortion bans. The Emergency Medical Treatment and Labor Act (EMTALA) of 1986 was created to prevent hospitals from refusing emergency care to patients unable to pay, and it requires that all patients must receive emergency care and stabilizing treatment. Under new state abortion laws, however, some pregnant patients who face an emergency threat to their health and require such stabilizing treatment may not receive an abortion because it’s unclear whether they meet a state ban’s exception for health or life of the mother (if such an exception exists). 

In these cases, the abortion law and EMTALA are in conflict. Mello said, “For providers, the question is not whether they should violate the law, but which law should they violate?” She cites two recent lawsuits in Texas and Idaho involving similar situations. It can take years for courts to establish through case rulings whether a provider could be prosecuted and held liable for withholding care if a patient were harmed or killed because an abortion was denied.

While these difficulties stem from legal rather than medical matters, Mello said, most doctors are not getting adequate support from their legal counsel. Some hospitals are recommending that emergency medicine doctors seek legal consultations before administering treatment, an approach she terms “not helpful.”

For providers, the question is not whether they should violate the law, but which law should they violate?

Not enough institutions are signaling support to their doctors, she said. “It’s a really big ask for front-line physicians to take that kind of risk” in a system where most abortion bans target the provider with penalties rather than the patient. Most penalties are civil, but some are criminal. She related a conversation with a colleague who is an OB-GYN in a state with a new abortion ban. This doctor, who trained for almost 10 years and has a young family, shared her fear of losing her livelihood as well as risking years in prison if she acted contrary to the ban. She shared her “moral distress” at not being able to help a patient. Mello said, “It’s really unfair there’s not more support for physicians to navigate this space.”

In her research on current state abortion laws, some the result of trigger laws and some newly passed, Mello found that 26 states have total or near-total bans, eight of which are temporarily on hold through the court system. Only four allow exceptions for victims of rape or incest, and only nine protect the patient’s health in non-life-threatening circumstances. She noted that the Supreme Court’s Dobbs decision ruled on a Mississippi abortion ban that does allow some exceptions, so the court has not ruled on the constitutionality of stricter bans. 

Mello’s recent research also includes the legal approaches used in the Roe and Dobbs decisions, which she terms “radically different” in their reasoning. She is working with a student to study the disparate impact of abortion restrictions on women of color compared with others. Mello also recently wrote about evolving legal and ethical issues in emergency room care and abortion in JAMA Health Forum.