Here's how legal departments at two hospitals, lawmakers in two states, and even the Supreme Court turned Melissa Farmer's emergency pregnancy into a life-threatening nightmare.
Farmer, 41, was 18 weeks pregnant when her water broke prematurely. Her doctor ordered her to go to a local hospital in Joplin, Missouri.
There, labor and delivery doctors at the hospital determined that she had no amniotic fluid left. Her baby's chance of survival was “zero” and she was at risk of infection, blood loss and even death. Doctors advised her that they could help her undergo an “inevitable abortion,” or she could wait, risking her life.
Idaho obstetricians live in constant fear… Idaho doctors have been warned that they are being tracked, scrutinized and must fear prosecution for performing abortions under any circumstances – even when medically necessary.
— Idaho Coalition for Safe Health Care
She chose the first option, and then the hospital's legal department intervened. Although Missouri's anti-abortion law includes exceptions when continuing the pregnancy results in the mother's death or “irreversible physical disability,” lawyers decided she had not reached that point yet.
Doctors advised Farmer to move out of state, but the only hospital able to handle her case was in Kansas, which was then in the midst of a political campaign over a proposed anti-abortion constitutional amendment.
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She arrived at the University of Kansas Hospital on August 2, 2022, the same day the vote took place. There, doctors offered her either to induce labor or to terminate her pregnancy surgically. Then the hospital's lawyers intervened. They prevented doctors from providing any treatment at all, after ruling, according to one doctor, that it was “too dangerous in this political environment.” Three days later, she arrived at a clinic in Illinois that performed the necessary treatment.
Melissa Farmer's experience matches those of countless other women whose health care has been harmed by state anti-abortion laws since 2022, when the Supreme Court in the so-called Dobbs decision struck down the guarantee of abortion rights established by Roe v. Wade in 1973.
But there is more to her case. The refusal of two major hospitals to treat her emergency case violated federal law — the Emergency Medical Treatment and Labor Act of 1986, known as EMTALA.
The law, which was drafted to prevent hospitals from “flooding” uninsured emergency patients by denying them treatment, requires all hospitals that receive Medicare funds — almost all hospitals — to provide all emergency room patients with the treatment needed to “stabilize” their conditions. Before transporting them or sending them home.
Investigations by Medicare inspectors last year concluded that Joplin Hospital and the University of Kansas Hospital violated the Imtala Act when they released Farmer without providing required treatment. Penalties of up to $50,000 per incident and termination of hospitals' Medicare contracts, but no measures have been announced.
There is no exception in EMTALA when the emergency treatment required is an abortion. This has made Imtala the latest target of anti-abortion agitators and politicians. They claim that federal law encourages or even mandates abortion in all cases, which is not true.
However, the claim has caught the attention of the Supreme Court, which has scheduled oral arguments for April 24 on a case involving Idaho's anti-abortion law and its apparent conflict with IMTALA.
The court's decision to hear the case alarmed abortion rights advocates when it was announced on January 5. The decision seems even bigger now: the court has indicated, though not guaranteed, that it will reject the right-wing challenge to the FDA. The administration approved mifepristone, the main drug in medical abortions, but the Idaho case could give the conservative majority another opportunity to strengthen the state's anti-abortion policies across the country.
“There's been a lot of press around the mifepristone lawsuit,” says Michelle Banker of the National Women's Law Center, which is providing Farmer with legal representation. “This is a bit of a sleeper situation.”
The case has its roots in an advisory issued by Medicare authorities two weeks after the Dobbs decision overturned Roe v. Wade. She stressed to doctors and hospitals that when a pregnant woman arrives at the emergency room with a condition that requires an emergency abortion, “the doctor must provide that treatment.”
When state law prohibited abortion and did not include an exception when the mother's life was threatened, the advisory said, “this state law is preempted” by federal law. (Emphasis are in bold in the original text.)
Anti-abortion advocates immediately took up arms against the warning. They rushed to the federal court in Lubbock, Texas, which has one active judge, James Wesley Hendricks, a Trump appointee, who blocked her with a permanent injunction. The government's appeal went to the famously right-wing US Circuit Court of Appeals, which upheld the injunction.
The Texas case has not yet reached the Supreme Court. It was outdone by the Idaho case, in which the federal government moved to block Idaho's anti-abortion law to the extent that it conflicted with Imtala's law.
The conflict, the government points out, is that the law requires doctors to perform an emergency abortion if necessary to prevent the patient's condition from deteriorating or to protect her from potentially serious or permanent injury. Idaho law prohibits abortion only if it is necessary to avoid the patient's death. In fact, doctors caught in this bind are told that they must allow the pregnant woman's condition to deteriorate to near death before they can act.
It was not entirely surprising that Idaho became the battleground for this issue. The state is doing very well in the race to enact the most foolish anti-abortion policies. The Abortion Law criminalizes abortion at all stages of pregnancy, with limited exceptions for cases in which the continuation of the pregnancy poses a threat to the mother’s life.
Idaho law also makes it a crime to help a minor leave the state to obtain an abortion. (A federal judge has temporarily blocked the so-called “abortion trafficking” law while a lawsuit challenging its constitutionality continues.)
The state claimed that its abortion law makes it a felony for a health care provider to refer a patient for an out-of-state abortion. (It has also been blocked for now by a federal judge.) Another state law imposes prison sentences of up to 14 years on professors at Idaho public universities for teaching, discussing or writing about abortion.
Put it all together, a ruling that she can violate federal law to protect her anti-abortion credentials would be in Idaho's favor.
In making its case, Idaho asserts that after the Dobbs decision, the Biden administration “reinterpreted” EMTALA “to create a nationwide abortion mandate,” and that it “discovered” the mandate nearly 40 years after EMTALA was enacted.
However, as the government points out, the mandate has always been within EMTALA; It didn't have to be explained before because Roe vs. Wade was the law of the land for 13 years before EMTALA was enacted. Until Dobbs, the role of abortion as an emergency treatment was never in doubt.
Abortion opponents contend that Dobbs “caused a radical change in the law,” Fifth Circuit Appellate Judge Kurt D. Englehart, another Trump appointee, appeared before the three-judge appellate panel upholding the Texas order.
That was a nice bit of sorcery. EMTALA did not change as a result of Dobbs – health care laws in red states changed to prohibit abortion. “It has always been understood that EMTALA requires abortion care when it is necessary to stabilize a patient's medical condition,” Banker told me. “The only thing new is that Roe v. Wade has been overturned.”
In fact, according to an amicus curiae brief filed by six former Medicare administrators and former Health and Human Services Secretary Donna Shalala, who served under both Presidents Bush as well as Presidents Clinton and Obama, Medicare has repeatedly issued public guidance asserting that abortion should be considered a treatment Suitable for emergencies when warranted, even before Dobbs.
Idaho, like its defenders in the swamp of right-wing fever, asserts that IMTALA “prevents emergency rooms from turning away indigent patients with serious medical conditions” and does not mandate “any specific type of medical treatment, let alone abortion.”
This is a corrupt and false interpretation of the law. It's a cynical attempt to conflate the problem that prompted Congress to act — hospitals were turning away emergency patients without insurance, a process known as “dumping” — with the broader law Congress enacted.
EMTALA explicitly protects “any individual” who presents to the emergency room, regardless of their financial or insurance status. Hospitals are not even allowed to inquire about a patient's financial or insurance situation if doing so would delay examination or treatment.
Idaho's interpretation suggests that hospitals can simply keep indigent patients in their hallways, untreated, until they waste away, without violating the Imtala law. That's not what the law says. It explicitly states that hospitals “either provide… such treatment as may be required to stabilize the medical condition” or transfer the patient to another facility that can provide treatment — as long as the transfer itself would not harm the patient.
What does “stability” mean? The law defines the term to mean “no material deterioration in condition” as a result of the patient being discharged or transferred. It also defines a “medical emergency” as a condition that, without treatment, would endanger “the health of an individual,” or cause “serious impairment of the functions of the body” or of any organ or part of the body.
Far from ignoring pregnancy issues, EMTALA has always covered women who have a pregnancy emergency. In those cases, the law says, hospitals are obligated to provide treatment that protects “the health of the woman or her fetus.”
The amicus curiae briefs accumulating in the Supreme Court's EMTALA docket include several broad outlines of the horrific ethical and legal trap facing doctors caught between EMTALA and state anti-abortion laws.
“Idaho obstetricians live in constant fear,” reads a summary submitted by a coalition representing 678 Idaho doctors and other medical professionals. “They always have the worry that a pregnant patient will arrive at the hospital needing emergency care that they won't be able to provide.”
Under Idaho law, doctors face up to five years in prison and the loss of their medical licenses for following medical protocols unless the patient is “face to face with death.” Federal and state laws cannot be reconciled at all:
Doctors facing an emergency pregnancy have the choice of complying with EMTALA and thus risking a harsh prison sentence and the end of their careers, or complying with state law and thus risking their patient's health or even causing her death, the brief says.
Worse still, “the culture of fear surrounding Idaho’s abortion laws has only exacerbated the struggle,” the brief says. “Idaho doctors have been warned that they are being tracked, scrutinized, and should fear prosecution for performing abortions under any circumstances — even when medically necessary.”
Is there any mystery behind OB/GYNS leaving Idaho with the result? Half of the state's 44 counties have no practicing obstetricians at all.
A solution, albeit a modest one, to the confusion over the responsibilities of obstetricians in anti-abortion states is for the Supreme Court to make clear that federal law prevails when it conflicts with a more restrictive state law. Making that clear in Idaho would send a signal to Texas, Missouri and other states that a mother's life and health cannot be overlooked.
The Imtala case gives the Supreme Court the opportunity to uphold science and ethics regarding women's reproductive health care, as it appears to be preparing to do with mifepristone. But what if he follows up on this case by allowing states to sentence pregnant women to substandard emergency care?
