The US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization not only revoked a right to reproductive health and privacy but has created tremendous uncertainty for those accessing reproductive health services, including abortion, and those providing care to people who are pregnant or otherwise seeking reproductive health or OB-GYN services. This has created a chilling effect throughout the United States, with some patients already being denied the best standard of care for fear of criminal penalty.
This is not the way to ensure safe treatment. While your union has your back and will defend members from the cruel and chilling implications of Dobbs, it is also important that every clinician knows their legal rights and potential exposure, understanding that implications will vary state by state.
Here are some frequently asked questions; visit go.aft.org/uv9 for a more comprehensive list that will be updated as more information becomes available.
Professional Practice Concerns
In states that have banned or restricted access to abortion, federal law still obligates clinicians to administer lifesaving medical care; but without clear guidance on determining whether a pregnancy is life-threatening, clinicians are left in a chasm between their medical judgment and restrictive state laws.
Q: Do clinicians have discretion in determining whether a pregnancy is life-threatening?
- According to guidance from the Department of Health and Human Services, under the Emergency Medical Treatment and Active Labor Act (EMTALA), the determination of an emergency medical condition (EMC) and the necessary course of treatment to address an EMC are under the purview of the physician or other qualified medical personnel.
- In a letter to clinicians, HHS Secretary Xavier Becerra emphasized this: “As frontline health care providers, the federal EMTALA statute protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.” (Emphasis added.)
Q: Will regulations enumerate only specific medical conditions that qualify for a “life of the mother” exemption to an abortion ban?
- HHS guidance states, “Emergency medical conditions involving pregnant patients may include but are not limited to: ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.” (Emphasis added.)
- In a letter to clinicians clarifying EMTALA guidance, Becerra stated, “Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the EMTALA statute.” (Emphasis added.)
Q: Do “life of the mother” exemptions require approval before the procedure can take place?
- Becerra stated, “If a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, 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.” (Emphasis added.) This indicates that federal statute not only protects clinicians in situations that require quick action but also requires them to take this action.
Professional and Criminal Liability
Following the Dobbs decision, clinicians may worry about criminal liability for providing reproductive healthcare or denying necessary care. These complexities will vary by state, but here’s what we know about federal protections.
Q: Are clinicians subject to malpractice litigation for denying an abortion to a patient who later dies from pregnancy complications? Are they subject to discipline by a state board? Are their licenses in jeopardy?
- Hospitals and/or medical personnel could be subject to a complaint under EMTALA if they do not provide stabilizing care for an emergency medical condition. A violation of EMTALA could result in civil monetary penalties and/or exclusion from Medicare and state healthcare programs for physicians.
Q: Are clinicians criminally liable for denying an abortion to a patient who later dies of pregnancy complications?
- EMTALA entitles any patient seeking emergency care for a medical condition to a screening to determine whether an emergency medical condition exists. If a qualified medical professional determines the patient has an EMC, the patient is entitled to stabilizing treatment within the hospital’s capability.
- Latest EMTALA guidance states, “A physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment.” (Emphasis added.)
EMTALA enforcement is complaint driven. If investigation of a complaint finds that a hospital and/or individual clinician violated EMTALA, it could result in termination of Medicare provider agreements and/or civil monetary penalties.
Q: Are clinicians required to report if a patient intends to get or gets an abortion in another state? What is the consequence for not reporting?
- Reporting a patient’s intent to seek a legal abortion in another state is a violation of the Privacy Rule under the latest HIPAA guidance.
–Staff of the AFT’s Nurses and Health Professionals Division