In oral arguments on Wednesday, the state of Idaho told the Supreme Court that the federal Emergency Medical Treatment and Labor Act (EMTALA) doesn’t protect the actions of emergency care practitioners from the state’s abortion ban — even when abortion is the medically indicated treatment. In making its argument, Idaho made multiple statements that I found troubling, especially as an emergency medicine physician practicing in a neighboring state.
Idaho made multiple statements that I found troubling, especially as an emergency medicine physician practicing in a neighboring state.
EMTALA is a federal law that requires emergency departments to provide treatment for any emergency condition until it is resolved or stabilized. Among other things, Idaho argued that EMTALA’s requirements of stability can be determined by individual states; that because abortion isn’t specifically mentioned in the federal law, this treatment isn’t protected by it; and because the law requires an emergency department to provide treatments that are “available” at that hospital, abortion can simply be considered unavailable because it’s been made illegal.
All those arguments are flawed. But I’ll focus here on what may be the most awful argument Idaho made: that its abortion ban doesn’t conflict with EMTALA, because it allows a narrow exemption if abortion is necessary to prevent death.
There are some beliefs embedded in this argument that gravely misunderstand what we do in the emergency room and the ethics that guide our work.
This defense of Idaho’s law presumes that preventing death is the only outcome that matters to us and to our patients. Such a defense presumes that we physicians can predict with accuracy the single moment when a risk to a patient’s health becomes a risk to that patient’s life. And this argument imagines a world where physicians would, or should, purposefully allow people to be patently at risk of death before intervening.
Solicitor General Elizabeth Prelogar, arguing for the U.S. government, told the justices Wednesday, “In Idaho, physicians have to shut their eyes to everything but death.”
Neither emergency medicine practice, nor EMTALA in particular, is just about preventing death. The law requires us “to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition” is likely to occur. In medicine, the standard that we are held to by our profession, our ethics and public expectation is to prevent harm and to treat illness as early as possible.
Idaho wants to redefine what it means to acceptably skirt death, but emergency medicine is not a “let’s see what happens” practice. We are a “let’s take care of this before it gets out of hand” practice.
Imagine someone is having a stroke, a heart attack or internal bleeding from a traumatic organ injury and a doctor knows the clear treatment but waits to see if the condition becomes “deadly” before acting. Acting immediately not only produces the best chance of survival, but it’s also our best chance of preventing suffering, organ damage, disability and a prolonged recovery.
In medicine, we use maxims like “Time is Brain” (for rapid treatment of stroke) and “Time is Myocardium” (for rapid treatment of heart attacks) for a reason. Rapid treatment to optimize patient care is the emergency standard of care, no matter which state you’re in; delays in diagnosis or treatment are not only anathema to our practice, but they’re among the most common reasons doctors are sued.
Idaho wants to redefine what it means to acceptably skirt death, but emergency medicine is not a “let’s see what happens” practice. We are a “let’s take care of this before it gets out of hand” practice.
Emergency practice is anchored around a universal notion of clinical stability. It’s a common reference point that applies to every patient and should not vary by hospital or state. In the chart of every patient I see in my capacity as an emergency physician, I make a note about their stability. Our emergency licensing board exams don’t test us on “Massachusetts emergency medicine” or “Texas emergency medicine.” We have a national standard of practice. Emergency physicians in all states need access to the full range of stabilizing treatments for the full range of conditions we see. For many emergency situations, achieving stability entails using a narrow range of treatment options, sometimes even a single treatment, and the medical decision to use such treatment does not vary by state. This is not just true for conditions that require abortion — such as an ectopic pregnancy — but for a wide range of other emergency care situations. Should Idaho, or any state for that matter, get to handpick which treatments we can use, and when, as we care for patients who are at risk for serious illness or death? There is a disturbing precedent proposed here. “If epinephrine were banned for the treatment of anaphylaxis, we’d be here as well,” Prelogar said. Uterine infections, ectopic pregnancy, pre-eclampsia or eclampsia, preterm premature rupture of membranes, major hemorrhage, severe exacerbations of underlying chronic medical conditions are among the numerous situations in which abortion is an appropriate and necessary stabilizing treatment, and having it as an option simply means we are prepared to provide emergency care. Not only are delays abhorrent to anyone receiving care for themselves or their loved ones, but they compromise the chances of success of the life-saving treatments themselves — some of which take time to work — and can make those treatments more risky to the patient. Certain procedures, certain anesthesia and a wide variety of medications are more dangerous when delivered to an unstable patient compared to one who’s stable. A law that demands that we hold back before acting functions as a self-fulfilling prophecy. Such a law, by itself, makes the worst outcome more likely.
Dr. Esther Choo
Esther Choo, M.D. M.P.H., is an emergency medicine physician, health policy researcher and founding member of Equity Quotient, a company that advises organizations on building cultures of equity. She has provided commentary on the pandemic and other health care topics through appearances on MSNBC, CNN, the BBC and Yahoo! Finance and editorials published in The Lancet, the British Medical Journal, The Washington Post, NBC Think and USA Today. 
