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JAMA Forum: Resuscitating Abortion Rights in Emergency Care

In this JAMA Forum article by Stanford Health Policy's Michelle Mello, the professor of health policy and law writes that reports are mounting of pregnant patients being denied potentially lifesaving care in emergency departments.

September 8, 2022

"On August 26, 2022, officials from the US Department of Health and Human Services warned state governors that the Biden administration would initiate legal action against states that bar physicians from providing abortion care in emergency situations. As reports mount of pregnant patients being denied potentially lifesaving care in emergency departments, the warning escalates a pitched battle over whether the administration can blunt the sharpest edges of Roe v Wade’s overturn.

"At issue is a question with profound importance (given the rise of political polarization), which takes priority when state and federal health laws conflict? More pointedly, when state and federal laws require a physician to take divergent actions, “Which law should she violate?”1

Because congressional Democrats lack the votes to pass legislation to restore abortion rights, the Biden administration has made several efforts to restore pieces of these rights through executive action. The administration’s view is that regardless of the Supreme Court’s constitutional ruling, federal statutes protect certain avenues of access to abortion care. One key statute is the Emergency Medical Treatment and Labor Act (EMTALA),2 a Reagan-era law that requires hospitals with an emergency department that participate in Medicare to provide “stabilizing treatment” to patients presenting with an “emergency medical condition.” EMTALA preempts state law only where the state law clearly conflicts with EMTALA’s requirements—ie, where one cannot comply with both laws."

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Until physicians feel secure practicing emergency care according to their clinical judgment, a new and pernicious form of defensive medicine is likely to predominate, and delays and denials of emergency care will exact a bitter human toll.
Michelle Mello
Professor of Health Policy and Law