Top Senate Democrat Grills Hospitals On EMTALA Compliance As Women Denied Emergency Abortions

Dive Brief:

• The chair of the powerful Senate Finance Committee is pressing hospitals on their compliance with federal emergency care law amid mounting reports that patients who need lifesaving abortions are being turned away.
• Sen. Ron Wyden, D-Ore., sent letters to eight hospitals in states with abortion restrictions on Monday, asking about policies and procedures they have in place around the Emergency Medical Treatment and Active Labor Act, or EMTALA.
• Wyden also asked for a list of personnel involved in deciding when terminating a pregnancy is the appropriate course of treatment, and what legal and human resource support is offered to them by the hospital.

Dive Insight:

Two years after the Supreme Court overturned the constitutional right to an abortion, the U.S. continues to reckon with an increasingly patchwork landscape of abortion access — including how state bans conflict with EMTALA, a nearly four-decade-old law that requires federally funded hospitals to provide emergency care for patients regardless of their ability to pay.

That emergency care can include abortions when needed to protect the life or health of the mother. Yet, since the Supreme Court rescinded Roe v. Wade in 2022, a number of reports have chronicled instances of patients not receiving the treatment they’re due under EMTALA.

More than 100 pregnant women in medical distress who sought help from emergency rooms were turned away or treated negligently since Roe v. Wade was overturned, according to an Associated Press investigation published last month.

In his letters, Wyden cites a report from ProPublica about the death of Amber Thurman, a woman in Georgia who waited almost a full day for doctors to perform an emergency abortion following a serious infection. Thurman’s death was preventable, according to Georgia’s state medical board.

It is the first publicly reported death due to a lack of abortion care.

Wyden sent a letter to Piedmont Henry in Atlanta — the hospital Thurman went to for care — along with seven other hospitals in Texas, Louisiana, Missouri, Florida and North Carolina that have reportedly denied or delayed emergency abortion care.

Each of those states has narrow abortion bans, with some sort of exception to protect the life of the mother.

However, the wording of bans is ambiguous and confusing, which exposes physicians (and their employers) to lawsuits and even potential jail time, experts say. As a result, providers often aren’t sure whether they can treat pregnancy-related medical emergencies, such as an ectopic pregnancy or preeclampsia.

Patients are “caught between dangerous state laws that are in clear conflict with – and preempted by – EMTALA,” Wyden wrote in his letter to hospitals.

Yet whether doctors in states with abortion bans can terminate pregnancies in emergency circumstances remains a gray area. In an attempt to shield themselves from legal action, some hospitals have refused to create policies around when and how abortions should be provided, leaving those complex and weighty decisions up to clinicians, according to reporting from the Washington Post.

Attempts from the Biden administration to clarify EMTALA’s precedence over state bans have faced pushback from conservative states.

After the Supreme Court overturned the constitutional right to an abortion, the HHS quickly issued guidance clarifying that EMTALA supersedes state abortion bans when needed for emergency care.

Texas challenged that guidance, and a federal judge later blocked the HHS from enforcing it in the state. That injunction remains in place.

In another legal conflict, the Department of Justice sued Idaho in 2022, arguing that state’s near-total abortion ban blocks physicians from providing necessary care in emergency situations. The case went to the Supreme Court, which ultimately allowed Idaho doctors to perform abortions to stabilize a patient’s life and health.

However, the court sidestepped the broader question of whether EMTALA preempts near-total abortion bans.

Meanwhile, the Biden investigation has launched investigations into hospitals that refused to provide abortions to women experiencing medical emergencies. And earlier this year, the HHS opened an online portal to allow patients and healthcare workers to submit complaints against hospital emergency departments for violating EMTALA.

Wyden sent the letters in advance of the Finance Committee’s hearing on Tuesday on how abortion bans are affecting reproductive care in the U.S. It’s the committee’s first hearing on the matter.

Democrats in the Senate are also poised to force a vote on emergency access to abortions this week. On Tuesday, Sen. Patty Murray, D-Wash., plans to seek unanimous consent to pass a resolution stating that all people have a right to emergency care, including abortion, according to Axios.

Abortion has been a key issue in this year’s presidential election, with Republican nominee former President Donald Trump struggling to square his record opposing the procedure with the political unpopularity of abortion restrictions. About 63% of Americans believe abortion should be legal in all or most cases, according to the Pew Research Center.

Trump appointed three Supreme Court judges who voted to overturn the constitutional right to an abortion. Meanwhile, the playbook for a conservative administration, Project 2025, calls for removing EMTALA guidance requiring hospitals to provide emergency abortion care.