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Healthcare Essentials

July 13, 2022

HHS Issues Reminder about EMTALA Obligations to Pregnant Women Post-Dobbs

By Patricia A. Markus, JD, CIPP/US, Phillip Mullinnix

The Secretary of the Department of Health and Human Services (“Secretary”) issued a letter to healthcare providers ("Letter") and associated guidance on July 11, 2022, reminding applicable providers of their EMTALA obligations to individuals who are pregnant or are experiencing pregnancy loss. Specifically, the Secretary noted that the determination whether an emergency medical condition exists pursuant to EMTALA is the responsibility of an examining physician or other qualified medical personnel, and that stabilizing treatment for emergency medical conditions involving pregnant patients, including ectopic pregnancy or preeclampsia with severe features, may include medical and/or surgical interventions – including abortion. The Letter emphasized that the EMTALA obligation to provide stabilizing treatment, including abortions, preempts any state law that prohibits abortion and does not include an exception for the life and health of the pregnant patient or that defines an emergency medical condition more narrowly than EMTALA does.

The Letter and guidance are directly applicable to healthcare providers in South Carolina as they navigate the implications of the South Carolina Fetal Heartbeat and Protection from Abortion Act (the “Fetal Heartbeat Law”), which became effective following the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Previous discussion of the Fetal Heartbeat Law is available here. As noted in that post, one exception under the Fetal Heartbeat Law permits an abortion—even after a fetal heartbeat is detected—in the case of a medical emergency. The Fetal Heartbeat Law defines a “medical emergency” as “a condition that, by any reasonable medical judgment, so complicates the medical condition of a pregnant woman that it necessitates the immediate abortion of her pregnancy to avert her death without first determining whether there is a detectable fetal heartbeat or for which the delay necessary to determine whether there is a detectable fetal heartbeat will create serious risk of a substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.” (S.C. Code Ann. 44-41-610(8).)

By contrast, EMTALA defines an “emergency medical condition” as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in either:

  • Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
  • Serious impairment to bodily functions, or
  • Serious dysfunction of any bodily organ or part. (42 U.S.C. 1395dd(e)(1))

While the Fetal Heartbeat Law’s exception for a medical emergency is limited to averting death and excludes mental health conditions from its purview, the EMTALA definition of emergency medical condition is not so limited. As noted by the Secretary, “Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the EMTALA statute.” Accordingly, pursuant to the terms of the Letter issued by the Secretary, the medical emergency exception at S.C. Code Ann. 44-41-660 is preempted by EMTALA.

Another exception under the Fetal Heartbeat Law permits a physician to perform a medical procedure, that, by any reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent serious risk of a substantial and irreversible impairment of a major bodily function of the pregnant woman. (S.C. Code Ann. 44-41-690(A).) This exception, although more closely aligned with the EMTALA definition of an emergency medical condition, remains more restrictive than that definition—an “emergency medical condition” under EMTALA requires only serious impairment of a bodily function, whereas the Fetal Heartbeat Law exception requires “substantial and irreversible impairment of a major” bodily function before a physician may perform a procedure to alleviate such a condition. Here, again, the state law exception is more narrow than the EMTALA definition of “emergency medical condition” and, accordingly, pursuant to the terms of the Letter issued by the Secretary, the state law “medical procedure” exception also is preempted by EMTALA. Additionally, the provisions of the Fetal Heartbeat Law are cross-referenced in such a way that this exception appears to require a physician to determine whether a fetal heartbeat exists before performing a medical procedure to prevent death or the serious risk of a substantial and irreversible impairment of a pregnant woman’s major bodily function. The requirement to perform an ultrasound before addressing the pregnant woman’s medical emergency would be preempted by EMTALA, as by definition the absence of immediate medical attention to an emergency medical condition could reasonably be expected to result in death, serious jeopardy to health, or serious impairment to bodily functions.

The Fetal Heartbeat Law includes a severability clause which makes it challenging to determine whether the entire statute, or simply certain provisions in direct conflict with EMTALA, is subject to preemption.

South Carolina providers who treat pregnant women likely are concerned that their attempts to comply with both statutes could result in either (1) a violation of EMTALA and the imposition of civil monetary penalties, as well as the potential termination of their Medicare provider agreements, or (2) a violation of the Fetal Heartbeat Law and a possible felony conviction that could result in imprisonment, a monetary fine, or both. To allay these kinds of concerns, the Secretary outlined in the Letter several ways in which EMTALA’s preemption of state law could be used as a shield, including as a defense to a state enforcement action, or in a federal lawsuit seeking to enjoin threatened enforcement of the state law, among others. In any situation involving the termination of a pregnancy in an emergency situation, South Carolina providers should extensively document the circumstances and the reasoning behind their chosen course of action.

The situation in South Carolina is likely to change in the coming weeks and months, as the General Assembly is currently in the process drafting and debating a bill that could further curtail abortions in South Carolina. Nonetheless, the post-Dobbs world has certainly complicated the daily lives of healthcare providers who treat pregnant individuals.