Preet Bharara:

From CAFE, and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara. Earlier this month, the Supreme Court agreed to consider whether a federal law compels doctors to perform emergency abortions in states with strict anti-abortion laws in certain circumstances. Idaho and Texas have pushed back against the federal law called the Emergency Medical Treatment and Labor Act, or EMTALA, arguing that it doesn’t override their state’s abortion bans. EMTALA requires hospitals that receive federal funding to stabilize any patient presenting an emergency medical condition. Since Roe v. Wade was overturned, countless stories have emerged of women in dire need of life-saving abortions, but unable to get them. The question for the Supreme Court is whether EMTALA requires doctors to provide such abortions, even where state laws might prohibit them.

Joining me to discuss this important topic are two experts. Steve Vladeck, a prior guest, is a professor at the University of Texas School of Law, and is a nationally recognized expert in the federal courts and constitutional law. He’s also the author of the best-selling book, The Shadow Docket, and has argued over a dozen cases before the Supreme Court. Dr. Dara Kass is an emergency medicine physician, and until recently, the regional director at the U.S. Department of Health and Human Services. A renowned educator and advocate, Dr. Kass has seen firsthand how policy impacts patients. Steve and Dara, welcome to the show.

Stephen Vladeck:

Thanks for having us.

Dara Kass:

Thanks for having us.

Preet Bharara:

Steve, let me start with you. Professional courtesy requires that I begin with the lawyer on the panel. EMTALA, you’ve been writing about it recently. Could you just give folks a primer on what it is, what its purpose was, when it was enacted, and what it’s about?

Stephen Vladeck:

Sure. So EMTALA is obviously an acronym. It stands for the Emergency Medical Treatment and Labor Act. And it was enacted by Congress in the 1980s really to do a couple of things. The principle impetus for it was a concern that there were parts of the country in which hospitals’ emergency rooms were turning away folks who couldn’t afford to pay for healthcare, Preet, even in contexts in which they had emergent conditions, a broken leg that needed to be set, a high fever, something that actually required hospitalization. And what Congress did is Congress says, “If you are a hospital with an emergency room, and you receive Medicare funds, which is basically every hospital with an emergency room, you must in fact provide what the statute calls stabilizing treatment to any patient who presents a ’emergency medical condition,’ regardless of that patient’s ability to pay for their treatment.” And the idea is that EMTALA creates basically this federal floor of required medical treatment for basically just about any hospital with an emergency room, treatment Preet that it can include in some circumstances abortions.

Preet Bharara:

So is the statute more focused on care for people who don’t have money, or means, or more about, if at all, setting a minimum standard? Or is it both?

Stephen Vladeck:

I think it’s both. I think the idea is that by setting a minimum standard that applies to all patients, it absolves hospitals of the need to basically run a credit check when you report to the emergency room. But it also compels hospitals to treat first and ask questions later, so long as you have a patient who presents with the required prerequisite, that is to say an emergency medical condition. And Preet, critically for this conversation, the statute defines emergency medical condition in pretty broad terms, the basic gist of which is it doesn’t have to be life-threatening. It just has to be something that at the moment is causing severe, or serious bodily injury, or pain, or is reasonably likely to do so. And the floor that EMTALA sets is a floor about folks who but for stabilizing medical treatment are going to be in serious distress, even if that distress is not in the short-term, or even in the long term life-threatening.

Preet Bharara:

And even though the current debate, and the conversation we’re having today is focused on the abortion context, EMTALA itself does not specify that it’s about abortion, or even mention abortion, which is one of the arguments that the states are making in their favor. Am I right about that?

Stephen Vladeck:

So as originally enacted, it said nothing about pregnancy at all. And it still says nothing about abortion. It has been amended so that part of the requirement it imposes is to stabilize not just a pregnant woman if the patient who presents is pregnant, but also the unborn fetus if possible. And that becomes a complication that the Fifth Circuit relies upon in the Texas case. But yeah. It’s not an abortion-specific statute. It is really just a, “We are creating a national floor of medical care that hospitals must provide to any patient who meets this threshold,” Preet, at least in part because the statute just didn’t want to put doctors and hospitals in the position of having to ask questions that might get in the way of emergency-stabilizing treatment.

Preet Bharara:

Right. So Dara, let me bring you in on this from the medical side. So Texas and some other states that have very restrictive abortion laws now in the wake of Dobbs do have an exemption for life-threatening conditions. But as Steve points out, EMTALA doesn’t have as its standard life-threatening condition, but emergency medical condition. As a doctor, tell us what’s the difference between, or what the gap is between emergency condition, and life-threatening condition, and what some examples are in the context we’re talking about today.

Dara Kass:

Yeah. So I think the first thing you need to understand is our job as emergency medicine physicians is to identify an emergency, and its threat to your life, to your health, to your organs before you are what we can call colloquially sometimes at the brink, or at very eminent risk of death. Because our chances of saving your life are actually higher the earlier we intervene with what we really know is a likely inevitable outcome if we don’t intervene. Right? So we can think about it as things like if somebody’s bleeding, we’ve seen a lot of people who’ve bled from things like gunshot wounds, or stab wounds, or bleeding in the course of pregnancy. And if we don’t transfuse early, if we don’t stop the cause of that bleeding early, then the person could be more unstable, and could have a higher heart rate, or a lower blood pressure. And then they may lose consciousness.

And we’re constantly trying to make sure that the person doesn’t get sicker in front of us. And the standards of interpretation around a lot of these exemptions regarding the care of a pregnant person, and their risk of pregnancy loss is very much around, how sick do they have to be to be legally allowable for me to intervene, not just medically necessary for me to intervene?

Preet Bharara:

So who decides those standards though? And can they be different in every state, that one person could be deemed to have an emergency medical condition in Texas, but not in New York, or vice versa?

Dara Kass:

So I think that’s the thing about EMTALA as it was written broadly, and also how our emergency care is determined everywhere in the United States, which is, it is at the discretion, and the respect of the knowledge, and medical expertise of the emergency physician on the ground, and their team ideally. Unfortunately, a lot of these interpretations can be at the level of hospital administrators, or the state attorney general, or local prosecutors. And what we think about a lot of these times is you have a patient in front of you. You know what to do. You understand the emergency, and the emergency care of that patient. But now you have to seek consult from a hospital ethics person, or a hospital lawyer, or maybe your personal attorney. Because if you go forward with what you interpret to be the appropriate treatment of the patient, are you now at risk for a felony charge? And how would that look? How would your defense of that be if the decision you’re making in the moment is judged by a prosecutor, or an attorney general, or a jury of your peers?

Preet Bharara:

Let’s take a particular example that comes up, and I’ve seen in the reporting on this. A woman comes into the hospital. And she has what’s known as an ectopic pregnancy. First, can you explain what that is? And then do you characterize that as life-threatening, or eventually life-threatening, or something else that is either short of or equal to an emergency medical condition?

Dara Kass:

Yes. So this is actually a really important example. So an ectopic pregnancy is a pregnancy that implants outside of the uterus. Okay? And in the course of diagnosing somebody with an ectopic pregnancy, there’s actually a window of time where their hormone levels of pregnancy can rise. But the ultrasound that we use to figure out if the pregnancy is in the uterus, or outside the uterus, may not actually show us where that pregnancy is. So as an emergency physician, and often in consult with my OB-GYN colleagues, we may treat a pregnancy that is not in the right place early. When we can’t see it, we call it a pregnancy of unknown location. Or we can have the patient be discharged, and come back, and say, “Two days later, we’ll check your hormone levels again. And we will check your ultrasound again.” That entire course of care is now being influenced by legislation and law that requires that you identify an ectopic pregnancy in the wrong place in order to be confident that you’re using the exception that may exist for the treatment.

And I say it like that to say that when you influence the care of something that is an inevitable emergency, an ectopic pregnancy, if it advances in the wrong place, and then ruptures can not just threaten future fertility, but absolutely threaten the pregnant person’s life. And as somebody who has taken care of numerous patients who have ruptured ectopic pregnancies with bellies full of blood, that is the thing we try to avoid. These laws unfortunately put us at a position where getting ahead of those cases is harder and harder to do in the confines of the restrictions that are being put on doctors around the country.

Preet Bharara:

Is the fetus in an ectopic pregnancy ever viable?

Dara Kass:

No.

Preet Bharara:

So in 100% of circumstances, that fetus is not viable.

Dara Kass:

In 100% of circumstances, the medical standard of care is for ectopic pregnancies to be terminated in order for the pregnant person to survive.

Preet Bharara:

Right. So Steve or Dara, either one of you, if you didn’t have EMTALA, and you have an ectopic pregnancy in Texas, what are your options?

Stephen Vladeck:

So this is a tricky question, Preet, only because Texas has amended its laws, as some of the litigation that’s provoking our conversation today has unfolded. But at least in the immediate aftermath of Dobbs, Texas’ abortion ban only had an exception where an abortion was necessary to save the life of the pregnant woman. And there were some pretty loud arguments made that that meant the immediate life-threatening risk to the woman. So if you had an ectopic pregnancy in its early stages where it would eventually become, but was not yet life-threatening, that would not count. The woman would’ve had to go out of state to get an abortion, or perhaps try somehow to pursue an illegal abortion. It was quite a big mess. Now on the ectopic pregnancy point, Texas and Idaho, the two states where this has been the most visible, problematic issue have now both basically carved ectopic pregnancies into their medical exceptions. But it’s just one specific condition, as opposed to the battery of conditions where you could have pregnant women in serious distress.

But because that distress is not immediately life-threatening, an abortion is prohibited by Texas state law and or Idaho state law, and indeed in Idaho comes with felony criminal risk for any doctor who performs it.

Preet Bharara:

Is one potential solution here at the state level for these states that have very restrictive abortion laws in the wake of Dobbs to enlarge what they mean by life-threatening, and get a little bit closer to, if not all the way up to emergency medical condition, which is the gap between EMTALA and these carve-outs in the states? Whether or not that’s politically possible, isn’t that one viable solution here?

Stephen Vladeck:

It would certainly make the conflict that is the basis for these two recent lawsuits go away. I suspect that there are plenty of physicians and reproductive rights folks who would still think that’s not nearly enough. But at least Preet, that would ameliorate the conflict between what the Biden administration says federal law requires, and what the state bans prohibit. And I’ll just say, in the Idaho case where the federal government brought a lawsuit against Idaho claiming that Idaho’s medical exception was too narrow in so far as it wasn’t in line with EMTALA, the exact relief that the district court ordered when it issued a preliminary injunction blocking part of Idaho’s ban was exactly what you say, was basically that the law was enjoined in so far as it prohibited abortions in circumstances that would be allowed if not required by EMTALA.

Preet Bharara:

Got it. Dara, are there other examples that are less commonly known as ectopic pregnancy is, that are conditions where pregnant women are at real risk?

Dara Kass:

Yeah. I think that part of the underlying issue with this entire conversation is that to have to continue to identify individual cases that the pregnant person was at risk is actually to entirely undermine all of what we do in emergency medicine, and healthcare, which is to take care of the patient in front of you, and what they particularly need. But cases that have come out specifically around EMTALA are actually around discharge of patients, not necessarily not treating them in the ER while they’re getting admitted, but patients that are early rupture of membranes. So we’ve seen this a lot in the cases in Texas where patients are rupturing before their viable pregnancies, before 21 weeks, let’s say 18 weeks, and 19 weeks. And we know that when those membranes rupture, you’re at risk for sepsis, infections, and complications of eminent delivery not in a supported environment.

And unfortunately, we’ve even seen criminalization of people that have had miscarriages at home, not in a medical environment in this case. But we see people get discharged. And then they come back to the ER the next day, or they go to a different state, and try to get care. And they’re discharged again, because their fetus may have a heartbeat. And they may not be sick enough. And that dumping, that back and forth, that hot potato of treatment of patients is exactly what EMTALA was created to prevent. Right? And we keep seeing these cases of individual pregnant patients being defined by their pregnancy, and not by their emergency. And that’s what is at risk here. If EMTALA does not prevail, then you have to ask yourself, “What are these attorneys generals, and governors, and state legislators trying to do? Why are they trying to undermine emergency care of every patient that comes to the ER?”

And I’ll give you a different situation that has nothing to do with abortion. If a state decides to outlaw blood transfusions, we know that certain people refuse blood transfusions for religious reasons. If a state decides that blood transfusions are no longer legal in their state, if this exact same case came up, everybody in America understands that blood transfusions are necessary for the emergency care of a lot of patients, accident victims, gunshot victims, pregnant patients who are bleeding. If an emergency blood transfusion is not legal in your state, what does an emergency medicine doctor have to do to give you that transfusion to save your life? These are the things we’re thinking about in emergency medicine as we see this case play out in front of the Supreme Court.

Preet Bharara:

Yeah. Steve, let’s tackle in the last few minutes we have what the real legal question is, and the quandary is. So you have these state laws that are very restrictive, and then you have EMTALA, which is a federal law. How does a court resolve a conflict between the state law, and a federal law, and why aren’t the Fed supreme?

Stephen Vladeck:

The short answer is if there is a conflict between the state law, and federal law, then the resolution is exactly that. The federal law wins. That is the central principle of the Supreme Court’s preemption jurisprudence, right?

Preet Bharara:

Don’t we have that here?

Stephen Vladeck:

That’s the debate. I think Dara and I are both probably fairly strongly on the view that EMTALA does preempt those state abortion bans that have a narrower medical exception than the emergency medical condition as defined in EMTALA. There’s been a split in the courts so far on this question. So in the Idaho litigation, we mentioned that the district court had issued an injunction against Idaho’s law. There was a three-judge panel of the Ninth Circuit that stayed that injunction, because they thought EMTALA did not actually have any preemptive effect, that it wasn’t a floor. It was just a funding measure. That stay was vacated, but then put back into place by the US Supreme Court earlier this month. And in the Texas case, the Fifth Circuit recently held that EMTALA doesn’t preempt state laws at all, because EMTALA imposes no minimum standard of care, which of course has some of the remarkable implications that Dara already alluded to as applied beyond the context of abortion.

So I think it’s a pretty open and shut preemption argument. The federal government has historically taken the position ever since EMTALA was enacted in 1986, that the statute preempts inconsistent and contrary state laws. But that’s what the US Supreme Court is going to have to decide, and what it has agreed to decide in this Idaho abortion case that it granted earlier this month, that it’s going to hear argument in in April, and then decide presumably by June.

Preet Bharara:

So I’m going to ask you, Steve, as you know I am constitutionally required to ask for your prediction. With this Supreme Court, with these nine justices given the vote on Dobbs to overturn Roe, what’s your best assessment of how this group of nine will assess this question about EMTALA, and abortion, and Texas, and Idaho?

Stephen Vladeck:

Yeah. I think the problem is that what I would have thought in the abstract Preet runs into what the court has already done in this case. So in the abstract, I would’ve thought that even this court would have at least five and perhaps as many as six votes for the proposition that the floor set by EMTALA is preemptive, and overrides narrower medical exceptions in states with aggressive abortion bans. The problem is that at least five of the justices, and we have no idea whether it was five or nine, have already voted in the Idaho case to freeze the injunction we mentioned earlier, basically to put back into effect the full scope of Idaho’s ban, which includes a prohibition on abortions in at least some cases in which EMTALA would require them.

And that vote doesn’t preclude them from changing their minds. But as with any orders the Supreme Court hands down through the shadow docket, we don’t know what that means other than that at least five of the justices at this point in the case think they’re likely to side with Idaho. I think that’s why folks like Dara and I are watching this case so carefully, and really so ominously for what it portends for the future of abortion access in states with restrictive abortion laws.

Preet Bharara:

Is there any solution in connection with federal legislation? Or no matter what the federal law requires, you run up against this issue? Or could EMTALA be written in a way that makes it more clearly preemptive of these restrictive state abortion laws?

Stephen Vladeck:

I think there’s no question that Congress could amend EMTALA to resolve whatever lack of preemptive effect the courts are finding in these cases. I think the tricky part with arguing for that now is that I think that actually waters down the argument that it already has that preemptive effect.

Preet Bharara:

It already does. Right.

Stephen Vladeck:

Right. But yes. If the Supreme Court comes out, and says, “Actually, EMTALA doesn’t do what for 38 years everyone thought it did,” yes. Congress could completely override that decision by amending EMTALA. Of course, that presupposes that there would be a majority of the House, and a filibuster-proof majority of the Senate that was willing to expand access to abortions even in this very small and very significant subset of cases.

Preet Bharara:

Before we go, Dara, last question to you. Is there an overwhelming consensus in the medical community about these issues bordering on unanimity? Or is there some difference of opinion? And a related question, how does the medical community feel about these cases in the context of doctors not being respected or deferred to for their medical expertise it seems increasingly as the years go by?

Dara Kass:

So I think that’s actually, it’s interesting we’re having this conversation on the heels of a pandemic, where we had emergency physicians and doctors on the country working days, nights, weekends, every minute of their lives to deal with an overwhelming and new virus, new condition, new everything in our health system. And we’ve come out on the other side. And now on the other side of this, we’re dealing with these state legislators, these attorneys general, these people who are coming out, and saying, “And now we’re going to interfere with the basic standards of care that you know how to do. We’re going to say, not just we know better than you, but we’re going to blame you,” right?

So we’ve seen this over and over again. Your doctor didn’t do the right thing if you think you had an exception, and they didn’t follow it. Treating doctors as if their own personal freedom, like staying out of jail is irrelevant to their medical decision making, and also that the risk to them as humans, and the trauma that they see, and they deal with seeing patients in front of them who are sick, who they know how to treat, and still have to question if that’s the right decision in the moment, and if they’re even allowed to do that.

There is consensus among physicians that I speak to all over the United States that all these laws do is worsen care around the United States. They put physicians in the position of either violating their medical knowledge, and committing what is really medical malpractice, or violating state law, and putting themselves at risk of legal liability. That is really where we are. You cannot right now in the state of Texas, or Idaho, or many other states in the United States follow the law, and follow your best medical knowledge simultaneously with a clear conscience.

Preet Bharara:

Yeah. It’s very troubling. We’ll be following these cases. Dara Kass, Steve Vladeck, thanks for your insight, and for coming on the show.

Dara Kass:

Thank you so much.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts, or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet. You can also now reach me on Threads. Or you can call and leave me a message at (669) 247-7338. That’s (669) 24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE, and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The editorial producer is Noa Azulai. And the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Nat Weiner, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.