Midyear Meeting

Do state abortion bans conflict with federal Medicare funding law? Delegates take a position

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Protests took place outside the White House and around the country after the June 24, 2022, decision in Dobbs v. Jackson Women’s Health Organization. (Photo by Bryan Olin Dozier/NurPhoto via AP)

The House of Delegates continued to address limitations on abortion care during the ABA Midyear Meeting on Monday.

Convening in Louisville, Kentucky, House members considered Resolution 507, which opposes all legislation, regulations, administrative interpretations and litigation that restrict the right of health care providers or hospitals that receive Medicare funding to provide patients with abortions in emergency situations.

The resolution also supports the right of health care providers and hospitals to provide abortion care and the right of patients to terminate a pregnancy or receive other stabilizing treatment during emergencies.

In the wake of the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, physicians and hospitals have refused to provide emergency abortion treatment due to potential criminal prosecution. Fourteen states are enforcing total abortion bans while others have imposed partial bans or restrictions on the procedure, according to the Section of Civil Rights and Social Justice, which submitted Resolution 507.

In introducing the resolution, past ABA President Hilarie Bass shared the story of Kate Cox, a Texas woman who did not qualify for an abortion in her state even though her fetus had a fatal condition. She brought her case to the Texas Supreme Court, and after it rejected her request for an exception under the state’s restrictive ban in December, she traveled to another state for an abortion.

“Multiple studies that have reviewed women’s health care since the Supreme Court’s decision in Dobbs have shown that abortion bans have altered the standard of care for pregnant women in ways that have contributed to worsened health conditions,” Bass said. “Forcing women to travel long distances to obtain emergency health care often severely compromises their health. That has been made clear in the media through heartbreaking personal stories of pregnant women forced to endure pain, hemorrhage, sepsis and other medical complications, threatening their lives and future fertility.”

State abortion bans directly conflict with the Emergency Medical Treatment and Labor Act, says the report accompanying the resolution. Since 1986, the federal law has required hospitals that participate in Medicare and have an emergency department to provide abortions and other treatment to stabilize patients’ emergency medical conditions even if they cannot pay.

Hospitals that violate the Emergency Medical Treatment and Labor Act could have their Medicare certification terminated. Also, according to the report, health care providers and hospitals that fail to comply with the federal law may face civil monetary penalties of up to $120,000 per violation.

Follow along with the ABA Journal’s coverage of the 2024 ABA Midyear Meeting here.

In 2022, the U.S. Department of Health and Human Services issued guidance reiterating that health care providers and hospitals are obligated under the Emergency Medical Treatment and Labor Act to provide stabilizing care, which includes abortions, during emergencies. The department also asserted the federal law requires that patients receive the care they need “irrespective of any state laws or mandates that apply to specific procedures.”

The Department of Health and Human Services guidance has been challenged in both state and federal courts.

In January, the 5th U.S. Circuit Court of Appeals at New Orleans ruled for the state of Texas, holding the federal guidance “exceeds the statutory language” and “goes beyond EMTALA by mandating abortion.” Texas bans abortions unless the pregnancy “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

Also, in January, the U.S. Supreme Court agreed to decide whether Idaho’s near-total abortion ban conflicts with the Emergency Medical Treatment and Labor Act. After a federal judge blocked Idaho from enforcing its ban in emergency situations covered by the law, the en banc 9th U.S. Circuit Court of Appeals at San Francisco upheld the injunction pending appeal.

“Many physicians report feeling moral distress resulting from their inability to provide the care they know that their patients need to avoid further physical harm,” Bass said. “Similar uncertainty is created for the attorneys, who are called to opine whether an emergency exception exists under the applicable statute and what treatment options are available to the physician. Lawyers are being [asked] to make medical judgments that are clearly outside of their expertise and which they are not competent to provide.”

Resolution 507 additionally opposes legislation, regulations and administrative interpretations that could compel lawyers to advise health care providers to “disregard human life” or violate the Emergency Medical Treatment and Labor Act or state law.

The Commission on Domestic and Sexual Violence, the Commission on Hispanic Legal Rights and Responsibilities and several other ABA entities co-sponsored the resolution, which was overwhelmingly adopted. The Bar Association of San Francisco and National Asian Pacific American Bar Association were also co-sponsors.

Other ABA action related to abortion care

The House also overwhelmingly adopted six resolutions related to abortion care immediately after the Supreme Court overturned Roe in 2022. These measures touch on a variety of topics, including criminal and civil liabilities for individuals and groups that assist with abortions.

In 2023, the House passed an additional resolution that calls on government entities to enact laws and regulations that protect the right of any individual to travel across state lines to access medical care.

On Friday, the ABA submitted an amicus brief urging the Supreme Court to reject a federal appellate court decision that substituted the judgment of the court for that of the U.S. Food and Drug Administration regarding mifepristone. The drug, which can be used to terminate early pregnancies, was approved in 2000.

The ABA argues the 5th Circuit effectively second-guessed the FDA’s scientific judgment in its August decision finding the federal agency failed to address safety concerns when it expanded access to mifepristone in 2016 and 2021. This, the association says in its brief, is contrary to the standard of review of FDA decisions that Congress and Supreme Court precedent has mandated.

The Supreme Court decided in December to hear U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. That case and Danco Laboratories v. Alliance for Hippocratic Medicine will be heard together March 26.

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