By Marlene Icenhower, BSN, JD, CPHRM

On June 24, 2022, the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and declaring that abortion is not a federal constitutional right. Certain state abortion laws evolved following the Dobbs ruling and will continue to evolve as the laws move through the court system. This rapidly changing patchwork of state laws leaves healthcare providers and organizations with little guidance on how to deliver healthcare in a post-Roe environment—especially in the case of pregnant patients who need emergency medical care.

On July 11, 2022, the Department of Health and Human Services (HHS) issued clarification to hospitals regarding the provision of abortions in emergency cases. The Emergency Medical Treatment and Active Labor Act (EMTALA) requires that all patients who present to the emergency department (ED) receive an appropriate medical screening exam, stabilization, and/or transfer. If a pregnant patient presents to the ED or the labor and delivery department with an emergency medical condition (EMC) for which abortion is found to be the stabilizing treatment necessary to resolve that condition, the practitioner must provide that treatment regardless of state laws that may prohibit abortion.

According to the HHS, determination of the existence of an EMC is the responsibility of the examining practitioner and, in a case involving a pregnant patient, may include:
  • Ectopic pregnancy.
  • Emergent hypertensive disorders such as preeclampsia with severe features.
  • Complications of pregnancy loss.
Selection of the course of treatment is also the responsibility of the practitioner and may include medical and/or surgical options including:
  • Abortion.
  • Removal of fallopian tubes.
  • Anti-hypertensive therapy.
  • Methotrexate.
Proactive planning is essential for all healthcare providers and organizations, especially those who work with pregnant patients with EMCs either in the labor and delivery unit and/or the ED. While each organization must develop its own policies and procedures to address EMTALA obligations in light of the Dobbs ruling, consider the following when preparing for the changes ahead:
  • Know the law. Work with an attorney to understand your obligations under EMTALA and other federal laws regarding the provision of care to patients experiencing an EMC. Understand how specific federal laws impact conflicting state laws. Ensure that your providers have an accurate and realistic understanding of the potential for civil and criminal liability resulting from the provision of abortion or other stabilizing treatments to patients who are experiencing an EMC.
  • Develop specific policies and procedures. Work with an attorney to develop specific policies and procedures regarding the provision of care to pregnant patients that present to the ED with an EMC. Ensure that policies and procedures reflect current federal and state law. Encourage reporting of medical or surgical abortions provided to pregnant patients who experience an EMC through the organization’s reporting system so that risk management/leadership is notified and can act accordingly.
  • Provide resources to providers. Policies and procedures may not address unusual situations that providers encounter in the ED. Develop a process by which providers can get immediate consultative assistance in resolving questions regarding the emergency treatment of pregnant patients to avoid delay in treatment.
  • Ensure careful documentation. While the determination of whether a pregnant patient is experiencing an EMC is the responsibility of the provider, documentary support of that determination is important in the event that decision is challenged. Encourage providers to thoroughly document the patient’s history as well as their physical findings, impressions, thought process, and decision-making rationale.
The ways that providers and healthcare organizations deliver reproductive healthcare will continue to change as the post-Roe legal landscape evolves. Staying abreast of these developments and working with an attorney to anticipate issues and plan accordingly will help minimize confusion and disruption.
Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.