New Biden administration initiatives are expected to broaden access to abortions ahead of US Supreme Court battles threatening the scope of reproductive rights, though court watchers say President Joe Biden’s team is constrained from taking a more aggressive stance.
The efforts announced Jan. 22 include a broad plan to educate patients on their rights to and hospitals on their obligation to provide abortion services in emergency situations despite state laws saying otherwise. Whether the Emergency Medical Treatment and Labor Act (EMTALA) trumps local restrictions is a question before the Supreme Court, and one complicating matters for patients and doctors across the US.
“If you are a pregnant person in Texas, and you are experiencing life-threatening pregnancy complications and you go to the hospital emergency department, odds are good that you won’t be able to get the lifesaving care that you need until you’re kind of literally on death’s door,” said Shaina Goodman, director for reproductive health and rights at the National Partnership for Women and Families.
In January, the US Court of Appeals for the Fifth Circuit blocked the Biden administration from enforcing its interpretation of EMTALA in Texas. The Justice Department declined to comment on whether it would appeal.
In April, the Supreme Court will hear arguments over whether hospitals can perform abortions in emergency situations when states have near-total bans. The case threatens the Biden administration’s interpretation of EMTALA as federal agencies push measures to expand access to abortion services, attorneys say.
The EMTALA effort “is more complicated by the fact that the Supreme Court is now weighing in,” said Mary Ziegler, a professor at the University of California Davis School of Law. “That isn’t really just for the Biden administration to decide at the moment.”
‘Clarifying the Nuances’
Under the administration’s EMTALA plan, the Department of Health and Human Services is partnering with provider associations and hospitals to provide training materials on providers’ obligations under federal law.
The HHS also said it was putting together “a dedicated team of HHS experts who will increase the Department’s capacity to support hospitals in complying with federal requirements under EMTALA,” and convene provider and hospital associations to talk about “best practices and challenges in ensuring compliance with EMTALA.”
“When somebody walks into the emergency room needing medical care, and abortion is the care that is required, that is covered by EMTALA,” Jennifer Klein, director of the White House Gender Policy Council, told reporters Jan. 22.
The EMTALA plans are “clarifying the nuances and details” and “exactly what the administration must do to ensure people understand what their health-care rights are,” said Sabrina Talukder, director of the Women’s Initiative at the Center for American Progress.
Since 2022’s Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court stripped away federal abortion protections, Talukder said there’s been “mass confusion and chaos caused by conflicting state laws, state laws being litigated with different procedural postures, on top of these large federal cases that are themselves very confusing.”
“That is really what we’re dealing with: providers and patients do not know their basic ability to access care, whether it’s an ER department or whether it’s an outpatient pharmacy where they’re trying to get abortion and pregnancy care,” Talukder said.
According to KFF data published in May 2023, 45% of the public wasn’t sure whether they could get medication abortion in their state. Meanwhile, 15% of women ages 18 to 49 in states with a full abortion ban wrongfully thought they could get abortion medication. How accessible abortion medication may be in the US is currently up for debate at the Supreme Court in FDA v. Alliance for Hippocratic Medicine.
Also according to KFF, as of Jan. 9 of this year, abortion was banned in 14 states, including Idaho, from which the Supreme Court case over emergency abortion access stems.
At present, however, EMTALA “is still the law of the land,” Goodman said. And the Biden administration “can still enforce the law as they understand.”
Potential Legal Challenges
The Supreme Court has already decided to allow an Idaho law prohibiting abortions in emergency situations to go into effect while the litigation plays out.
The Biden administration’s EMTALA plans are an attempt to work around abortion restrictions, and “making sure any woman who wants an abortion” can get one in an emergency room until the Idaho decision comes down, said Heritage Foundation legal fellow Sarah Parshall Perry.
“This administration has been very creative in finding ways to platform their abortion-only, abortion-early sort of issues set,” Perry said.
Perry also noted that abortion is “now more accessible than ever” in seven states. “We’re looking at an expansion of access,” she said.
While the Biden administration has limited its views on EMTALA to informal, non-legally binding measures, Perry said it could spur litigation, given it’s a “preposterous interpretation of federal law.”
“I would not be surprised if we see, in a very short order, a number of legal challenges,” she said.
Yet UC Davis’ Ziegler said the Biden administration may have chosen informal measures to advance its interpretation out of an abundance of caution geared toward avoiding litigation.
The “next long game” plan for the anti-abortion camp is “clearly to get the court to start recognizing a fetus as a person” in legal contexts, Ziegler said.
Being aggressive with reproductive rights measures might backfire for the Biden administration as “the Supreme Court is likely to make things worse, not better,” Ziegler said.
—With assistance from Courtney Rozen