For nearly four decades now, a federal law known as the Emergency Medical Treatment and Labor Act, or EMTALA, has given Americans the right to receive care at emergency departments, regardless of income or insurance status. The law applies to all kinds of emergencies, including pregnant people in labor, or those for whom an abortion may be medically necessary to preserve their health or save their life.
Since the U.S. Supreme Court struck down the constitutional right to abortion in June 2022, some experts have worried that EMTALA would clash with states that restrict or ban abortions. So far, two states — Texas and Idaho — have ongoing lawsuits with the federal government, claiming their state bans and restrictions on abortion take precedence over EMTALA. And on January 5, the Supreme Court said it would consider Idaho’s case, which centers on the relationship between EMTALA and the state’s abortion ban.
Legal experts worry that if the Supreme Court rules in favor of Idaho and allows states to shape their own laws for pregnancy emergencies without regard to EMTALA, then the states could apply the same logic to all other forms of emergency medical care that currently covered under the federal emergency law.
“So, states could start carving out HIV care, or mental health, or serious and chronic conditions that they deem too futile or not worth the time and energy of emergency department,” says Sara Rosenbaum, a professor emerita of health law and policy at George Washington University’s Milken Institute School of Public Health, who has written extensively about EMTALA.
Through memoranda and various efforts, federal health officials have emphasized that EMTALA takes priority over state laws.
Most recently, on January 22, the 51st anniversary of Roe v. Wade, the Department of Health and Human Services and the Centers for Medicare & Medicaid Services introduced new resources for the public and health providers to learn about their rights to receive emergency medical care under EMTALA. The announcement was part of a wider effort by the White House to strengthen Americans’ access to contraception, medication abortion and emergency medical care.
The Department of Health & Human Services has issued other notices about the application of EMTALA, including a memorandum in September 2021 after a Texas abortion ban case, in July 2022 after the overturning of Roe and following an executive order by President Joe Biden, and in May 2023 following the investigation of two hospitals in Missouri and Kansas that violated EMTALA.
“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” states a Biden administration memorandum in July 2022. “When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” by the federal law.
Abortion rights advocates have filed lawsuits over several states’ strict abortion bans, Axios reported in September. Rosenbaum said she’s preparing an amicus brief on behalf of the American Public Health Association and more than 100 law and policy scholars before the Supreme Court makes its decision on Idaho’s case.
EMTALA in brief
EMTALA was introduced in 1985 with bipartisan support in response to a spate of “patient dumping” cases, which refers to emergency departments refusing care to patients who are indigent and have no health insurance, including patients who were in labor. President Ronald Reagan signed it into law in 1986, when Roe v. Wade was still law of the land.
Under EMTALA, hospitals must examine and stabilize patients, regardless of insurance status, citizenship or other factors.
“It essentially is the closest thing we have in this country to a human rights statute,” says Rosenbaum.
The law applies to all hospitals with emergency departments that participate in Medicare (only about 1% of non-federal community hospitals don’t participate in Medicare, according to the American Hospital Association). The Department of Health and Human Services oversees and enforces EMTALA.
Physicians and hospitals can be fined up to $50,000 per incident of failing to comply with EMTALA and are at risk of exclusion from Medicare and Medicaid programs for repeated violations. Physicians’ malpractice insurance does not cover EMTALA violations.
While EMTALA is an important safety net for people without health insurance, it doesn’t guarantee free care, and patients may still be billed, as the authors of a 2018 study published in AIMS Public Health explain.
Emergency departments and pregnancies
EMTALA covers not only conditions that threaten life but also conditions that can impose severe and long-lasting health impacts. That includes pregnancy-related complications and emergencies that may require medically necessary and life-saving abortions, even though abortion is not specifically mentioned in the law.
The majority of people who have emergencies related to pregnancy go to an emergency department, according to a 2023 study published in the American Journal of Emergency Medicine. At least a third of pregnant women go to an emergency department at some point during their pregnancy, studies have shown and up to 15% suffer from a potentially life-threatening condition during the first trimester.
A 2020 study of 2.8 million women in Ontario, Canada, who were pregnant between 2002 and 2017, finds that 40% visited an emergency department, mostly during the first trimester or soon after giving birth.
The most common conditions during the first trimester were threatened abortion (the technical term for vaginal bleeding at less than 20 weeks of gestation), hemorrhage (severe bleeding), and spontaneous abortion (miscarriage), according to the study.
Other emergency medical conditions involving pregnant patients may include but are not limited to ectopic pregnancy — which is when a fertilized egg grows outside of the uterus and can be a life-threatening emergency, complications of pregnancy loss, or high blood pressure conditions such as severe preeclampsia.
Dr. Glenn Goodwin, an emergency physician in Florida, says at every shift there’s a first-trimester pregnant patient who’s bleeding.
“I’d say probably 10% of our ER visits are somewhat OB-related, whether it’s a first-trimester bleed, or whether it’s abdominal pain in pregnancy,” Goodwin says. “How many of those cases are actually life-threatening? Very, very few.”
EMTALA and state abortion bans
Since the end of Roe in June 2022, 14 states have enacted a total ban on abortion, four states ban abortion after six or 12 weeks, and seven after 15 or 22 weeks. Abortion is legal, including beyond 22 weeks, in 25 states and the District of Columbia, according to the KFF, a nonpartisan health policy research organization.
What leads to confusion among health providers is the vague language of the law in states that have abortion bans.
For instance, many states with strict abortion bans have exceptions to “prevent the death” or “preserve the life” of the pregnant person, according to an analysis by KFF.
Arkansas, Idaho, Mississippi, Oklahoma and South Dakota have exceptions to save the life of the pregnant person, but do not have any exceptions for protecting their health.
Other states with abortion bans have exceptions that consider protecting the health of the pregnant person — not just their life — permitting abortion care when there’s a serious risk of substantial and irreversible impairment of a major bodily function. The Texas abortion ban says physicians must determine whether an abortion is necessary based on their “reasonable medical judgment.”
“These exceptions are not clear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply, and the determination is not explicitly up to the physician treating the pregnant patient,” according to the KFF analysis.
A KFF 2023 National OBGYN survey, including 569 physicians, finds more than half of those who practiced in states that banned abortion were concerned about their legal risk when deciding on the necessity of abortions.
In an opinion piece published in the Annals of Internal Medicine in January 2023, Dr. Eli Y. Adashi and I. Glenn Cohen write, “physicians in restrictive states face extremely difficult choices between protecting pregnant persons and the threat of legal sanctions.”
Out of frustration with confusion in his own emergency department, Goodwin, the Florida emergency physician, set out to do a study in 2022 on state abortion laws and whether they conflicted with EMTALA.
He and his co-authors find that the overturning of Roe “does not prohibit termination of pregnancy in the setting of life-threatening conditions to the mother, including ectopic pregnancy, preeclampsia, and others,” but they recommend that “physicians be mindful of the rapidly-evolving laws in their particular state, and to also practice in accordance with Emergency Medical Treatment and Active Labor Act (EMTALA). Patient safety must be prioritized.”
Goodwin completed his study before the Supreme Court said that it will consider whether EMTALA takes priority over Idaho’s restrictive abortion ban. The oral arguments are scheduled for April.
Before states like Florida passed a 15-week abortion ban except for saving the patient’s life, things were much clearer for emergency physicians like Goodwin.
“We never really considered any legal ramification at all,” Goodwin says. “The patient came in and all of our brains were just focused on the medical aspect of care. Since this law change, we have to consider some of the legal aspects of it.”
He gave the example of a patient who’s 15 weeks pregnant, has been bleeding for days and is miscarrying, but still has a fetus with a heartbeat.
“At that point, the conventional medical treatment will be to just give an abortive medication, because there’s really no chance of this fetus living and the mother is bleeding,” he says. “And you don’t want her to continue bleeding because that would be a risk.”
But Florida’s 15-week abortion ban makes the decision complicated. For Goodwin, whose hospital doesn’t have a labor and delivery unit, the solution would have been to transfer the patient to another hospital that has a labor and delivery unit, instead of proceeding with the standard treatment in his own emergency room.
Goodwin also worries that the ongoing legal battles will further reduce the number of medical students who will choose to specialize in Ob/Gyn.
“You have Ob/Gyn hopefuls saying they don’t want to train in states like Mississippi because they’re not going to learn how to do an abortion,” Goodwin says. “And however you feel about abortion, it is kind of a crucial aspect of Ob/Gyn training because there are times where you have to do it as a life-saving procedure.”
An April 2023 report by the Association of American Medical Colleges shows that the number of applicants for Ob/Gyn residencies dropped in all states in 2023, but had the steepest decline in states with abortion bans. In those states, applications dropped by 10.5% compared with the previous year.
To help journalists prepare to cover the upcoming Supreme Court hearing, we’ve gathered several research studies on EMTALA, including analyses of hospitals’ general compliance issues since the law was passed. The studies were published both before and after the overturning of Roe.
A National Analysis of ED Presentations for Early Pregnancy and Complications: Implications for Post-Roe America
Glenn Goodwin, et al. The American Journal of Emergency Medicine, August 2023.
The study: The study, published before the Supreme Court took up EMTALA, uses data from the National Hospital Ambulatory Medical Care Survey, from 2016 to 2020, to evaluate trends in pregnancy-related emergency department visits that could be impacted by restrictive abortion laws. The dataset included 4,556,778 pregnancy-related emergency department visits in the U.S. The authors also analyzed the state laws.
The findings: Nearly 80% of the visits in the study were for patients between 18 to 34 years old. This age group also made up 76% of visits for pregnancy complications, including ectopic pregnancies, and 80% of visits for miscarriage or threat of miscarriage in early pregnancy. This age group also accounted for all visits for complications following an induced abortion or a failed abortion.
A quarter of the patients were Black and 70% were white. By ethnicity, 27% of the patients were Hispanic.
Almost 71% of the visits were due to complications after an induced abortion occurred in patients who lived in the South. Such visits were also twice as likely to occur in non-metro areas.
Nearly 50% of the patients were covered by Medicaid, compared with about 25% with private insurance. About 10% had no insurance.
The takeaway: Pregnancy-related emergency department visits comprise a significant proportion of emergency care, the authors write. The overturning of Roe “does not prohibit termination of pregnancy in the setting of life-threatening conditions to the mother, including ectopic pregnancy, preeclampsia, and others, but the resultant uncertainty and ambiguity surrounding the constitutional change is leading to an over-compliance of the law, necessarily obstructing reproductive health care,” they write.
Penalties for Emergency Medical Treatment and Labor Act Violations Involving Obstetrical Emergencies
Sophie Terp, et al. The Western Journal of Emergency Medicine, March 2020.
The study: There’s no question that EMTALA applies to active labor, which is the only medical condition — labor — included in the title of the law, the authors write. They review descriptions of EMTALA violation settlements involving labor and other obstetric emergencies, listed on the Office of the Inspector General website between 2002 and 2018.
The findings: Of 232 EMTALA violation settlements, 17% (39) involved active labor and other obstetric emergencies. Settlements involving obstetric emergencies increased from 17% to 40% during the study period. Of those, 18% involved a pregnant minor. Most violations involved failure to screen and/or stabilize the pregnant patient.
Of the 39 cases, the Southeast had the most number of violations — 38%, including eight violations in Florida and five in North Carolina.
The takeaway: “Recent cases highlight the need for hospital administrators, emergency physicians, and obstetricians to evaluate and strengthen policies and procedures related to both screening exams and stabilizing care of patients with labor and OB emergencies, even if the hospital does not provide dedicated OB care,” the authors write.
Complying With the Emergency Medical Treatment and Labor Act (EMTALA): Challenges and Solutions
Charleen Hsuan, et al. Journal of Healthcare Risk Management, November 2017.
The study: Despite the passage of EMTALA in 1986, hospitals continue to violate it, which includes refusing to examine or stabilize patients, or making inappropriate transfers to other hospitals. In the first decade after the law was passed, nearly one-third of U.S. hospitals were investigated for EMTALA violations. “And as of 2011, almost 30 years after the Act was passed, 40% of investigations still found violations,” they write.
The authors explore the reasons for not complying with EMTALA and suggest ways to improve compliance. Their analysis is based on 11 interviews with hospital officials, hospital associations and patient safety organizations that review clinical data on EMTALA violations in Georgia, Kentucky, North Carolina, South Carolina and Tennessee. The South had the highest number of EMTALA complaints at the time, compared with other U.S. regions.
The findings: There were five main reasons for non-compliance: financial incentives to avoid unprofitable patients; ignorance of EMTALA’s requirements; high burned of referral at hospitals that receive EMTALA transfer patients; reluctance to jeopardize relationships with transfer partners by reporting borderline EMTALA violations; and opposing priorities of hospitals and physicians.
The authors propose four ways to improve compliance with EMTALA: align federal and state payment policies with EMTALA; amend EMTALA to permit informal mediation sessions between hospitals to address borderline EMTALA violations; increase the hospital role in EMTALA training and spread information; and increase the role of hospital associations.
Emergency Medical Treatment and Labor Act (EMTALA) 2002-15: Review of Office of Inspector General Patient Dumping Settlements
Nadia Zuabi, Larry D. Weiss, and Mark I. Langdorf. The Western Journal of Emergency Medicine, May 2016.
The study: The Office of Inspector General (OIG) of the Department of Health and Human Services enforces EMTALA. The study examines the scope, cost, frequency and common allegations leading to mandatory settlements against hospitals and physicians for patient dumping. The enforcement actions are listed on the OIG website, where you can find more recent cases.
The findings: Between 2002 and 2015, there were 192 settlements, with fines adding up to $6.4 million. The average fine against hospitals was $33,435 and against physicians was $25,625. 96% of the fines were against hospitals.
The most common settlements were for failing to screen the patient or stabilize them in emergency situations. There were 22 cases of inappropriate transfer to another hospital and another 22 cases for failing to transfer to a facility that could care for the patient. In 25 cases, hospitals failed to accept an appropriate transfer. In 30 cases hospitals turned away patients because their insurance or financial status. Thirteen cases involved a patient in active labor.
Examining EMTALA in the Era of the Patient Protection and Affordable Care Act
Ryan M. McKenna, et al. ASIM Public Health, October 2018.
The study: The authors examine the characteristics of hospitals that violated EMTALA between 2002 and 2015 — before and after the implementation of ACA in 2014 — using the OIG database and matching them with a national hospital database.
The findings: There were 191 EMTALA settlement agreements during the study period, although the analysis included 167 cases after excluding others due to lack of data. Settlements decreased from a high of 46 in 2002 to a low of six in 2015, a decline of 87%. The settlements were most common in hospitals in the South (48%) and urban areas (74%). The average settlement for hospitals was $31,734, adding up to $5,299,500 during the study period.
The takeaway: There was an overall downward trend in violations of EMTALA, even though the study can’t establish that the implementation of ACA caused the downward trend. The authors suggest the reduction in EMTALA violations could be due to two factors: “First, in shifting hospitals’ payer mix away from self-pay, the insurance expansion of the ACA reduces the risk of uncompensated care to systems,” they write. “Second, the ACA helped improve access to health care at facilities other than the ED.”
Will EMTALA Be There for People with Pregnancy-Related Emergencies?
Sara Rosenbaum, Alexander Somodevilla and Maria Casoni. The New England Journal of Medicine, September 2022.
The Enduring Role Of The Emergency Medical Treatment And Active Labor Act
Sara Rosenbaum. Health Affairs, December 2013.
Emergency Medical Treatment and Labor Act: Impact on Health Care, Nursing, Quality, and Safety
Theresa Ryan Schultz, Jacqueline Forbes, and Ashley Hafen Packard. Quality Management in Health Care, March 2024.