Does EMTALA Apply to Pregnancy and Abortion? Ethicist Says Yes

This transcript has been edited for clarity. 

Hi. I'm Art Caplan. I'm the head of the Division of Medical Ethics at NYU Grossman School of Medicine. 

In the news quite a bit, as we all know, are battles after the Supreme Court decision in Dobbs that overturned Roe v. Wade. What are the impacts of the return to the states of the ability to permit, regulate, restrict, or ban abortions? There are any number of important cases moving through Supreme Court review, and there's the battle over mifepristone, the abortion pill, that many women use. Is that something that could be prohibited when states severely restrict the right to have an abortion from the moment of conception? 

More recently, we've seen a huge battle break out over Idaho's decision to have a very strict ban on all abortions, basically saying that, with the exception only of the life of the mother, if that is in peril, against the federal law, which is the Emergency Medical Treatment and Active Labor Act (EMTALA), that requires doctors to stabilize and treat any patient who goes to an emergency room. 

EMTALA has been around for a long time as a federal law. There are many emergency rooms that are quite familiar with people coming in who don't have insurance and who can't pay, but they are still obligated. It's the one place in the American healthcare system where — if you're running an emergency room — you at least have to get the patient stabilized before you let them leave. You don't have to treat them long term, but you have to make sure that whatever health emergency they face is controlled. 

Idaho has argued that there's nothing about this federal law that should interfere with the state's right. I think there are about 12 other states with equally broad bans on abortion. The attorney general, in arguing before the Supreme Court, said there's nothing about the EMTALA law that was meant or intended to interfere with the state of Idaho's right to ban abortion.

I completely disagree with that position. The idea that you're going to have women showing up in emergency rooms — and there are not many of them, but when they happen — who need treatment to stabilize something that's gone very wrong in a pregnancy and their lives are at issue… You shouldn't have a situation where you have to wait until you're sure they're going to die before you intervene. That is just bad, unprofessional medicine. 

It's like saying we will treat heart attack patients in the emergency room, but in order to do so, we want to make sure they're really having a heart attack, so when they're almost dead, we will intervene. You wouldn't put up with that, and we shouldn't. In medicine, with our professional ethics obligation to help people recover who are in dire straits, we shouldn't have to wait. If we suspect they're in deep trouble or they might die, and the only way to handle that is through an abortion of a pregnancy to stabilize them, then that has to happen. It just does. 

The argument that the EMTALA law never really was meant to apply to pregnant women or abortions is also unpersuasive. It seems that some of the Supreme Court justices weren't sure, but look at the name of the act: the Emergency Medical Treatment and Active Labor Act. It's telling you that Congress intended for patients who are pregnant and in trouble during their labor and delivery to get help. 

That obviously could extend to rare situations where their lives are in peril and the only way to handle the situation is to terminate the pregnancy. When you have "active labor" as part of the name of the law, it seems to me that you have to be more ideological than legal in trying to interpret whether the federal law trumps, beats, or overrides the state law.

My position is, on professional ethics grounds, that women in trouble during pregnancy, where the only option is to terminate the pregnancy, require a rapid response. Waiting until you think they're going to die, holding them in the parking lot, and keeping them around in the emergency room while they suffer is barbaric, unprofessional, unethical medicine. 

Did the federal government intend to tell the states that women who are in active labor need to be helped, stabilized, and get the treatment they deserve? Absolutely, yes. It's right in the name of the law. I see no options here to defend complete bans on abortion if women are in peril or if they're having trouble that might require termination of a pregnancy, for whatever reason, to protect their health and life. They have a right, I would absolutely insist, under EMTALA to get the treatment they deserve. 

Would that overturn not only Idaho's complete ban but also other state laws that are trying to argue that abortion must be prohibited as soon as conception occurs? Yes, it would, but I think that is bad law on the part of the states. There are situations where you have to put women's health first over that of an embryo or a fetus that is in trouble. I think the full-fledged person has moral rights that are going to be more significant than the potential person's. 

I'm Art Caplan at the Division of Medical Ethics at NYU School of Medicine. Thanks for watching.