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AG Nessel Joins Multistate Coalition Opposing Texas’ Attempt to Exclude Abortion from Emergency Healthcare

LANSING – Michigan Attorney General Dana Nessel joined a coalition of 21 attorneys general led by California and New York in filing an amicus brief supporting the federal government’s defense of the Emergency Medical Treatment and Labor Act (EMTALA) against Texas’ attempt to broadly exempt abortion care from emergency healthcare. Following the U.S. Supreme Court’s reversal of Roe v. Wade, the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) issued guidance reiterating EMTALA's existing obligations that require hospitals to provide stabilizing emergency treatment, including abortion. Texas filed a lawsuit challenging EMTALA's longstanding interpretation and is seeking to remove abortion care from emergency healthcare under the law. In the brief filed in Texas v. Becerra, the Amici states argue that Texas’ challenge conflicts with the plain text of EMTALA as well as decades of precedent and puts at risk the lives and health of individuals with pregnancy-related emergency medical conditions. 

"It is unconscionable that a state would want to deny emergency abortion care when the life and health of the mother are at stake," Nessel said. "Emergency rooms are required to stabilize a patient's medical condition, including the provision of abortion care. Any attempt to deny this necessary healthcare is dangerous and shows a lack of compassion for women with emergent medical conditions. I am happy to join my colleagues in supporting EMTALA and reject Texas' attempt to side-step federal law."

In the brief, the Amici states underscore that every hospital that operates an emergency department and participates in Medicare is subject to EMTALA — criteria met by virtually every hospital in the United States. Under the law, emergency rooms are required to provide all patients who have an emergency medical condition with the treatment required to stabilize the medical condition. Many patients seek emergency medical care due to pregnancy-related medical emergencies that may require abortion care, including ectopic pregnancy, hemorrhage, amniotic fluid embolism, pre-labor rupture of membranes, intrauterine fetal death, and hypertension. If immediate treatment is not provided, these medical conditions could jeopardize patients’ health and even result in disability or death. Decades of federal guidance and judicial interpretation have held that stabilizing treatment under EMTALA includes emergency abortion care. HHS and CMS' guidance simply restates hospitals’ existing obligations under the law.

The coalition argues that preventing hospitals from performing abortions needed to treat an emergency medical condition, as determined by a treating physician, threatens the health and lives of pregnant patients. Many pregnancy and miscarriage complications are emergency medical conditions requiring time-sensitive stabilizing treatment that can include abortion. In an emergency situation, any failure or delay in providing necessary abortion care puts the pregnant patient’s life or health at risk. For example, since Texas' six-week abortion ban (S.B. 8) took effect on September 1, 2021, pregnant people in Texas have been experiencing delays in treatment and corresponding harms to their health. Doctors in Texas reported postponing care “until a patient’s health or pregnancy complication has deteriorated to the point that their life was in danger, including multiple cases where patients were sent home, only to return once they were in sepsis.” Delaying life-saving emergency treatment is also gravely risky because physicians cannot easily predict at which point during a medical emergency a pregnant patient’s life may be imminently threatened. A recent study of maternal morbidity at two Texas hospitals following the enactment of S.B. 8 found that when a pregnant patient came to a hospital with emergency complications and was provided observation-only care until the condition worsened, the rate of serious maternal morbidity was 57%, almost double the rate that occurs when the treating physician followed the standard protocol of terminating the pregnancy to preserve the pregnant patient’s life or health.

The brief also argues that allowing Texas to ban abortion care in medical emergencies where it is required under EMTALA risks significant effects in other states as well. If hospitals in states like Texas fail to comply with their obligations under EMTALA, Amici states anticipate even further strain on their state health systems. Amici’s experience demonstrates that state abortion restrictions force many women to travel out of state for care. For example, in the first four months during which Texas’ SB 8 was in effect, the number of Texans seeking abortion care in neighboring states increased by nearly 600%, as compared to the month before the law’s effective date. Should Texas’ preliminary injunction be granted, emergency rooms in neighboring states that protect abortion will inevitably need to absorb additional out-of-state emergency patients at a time when the States continue to wrestle with an ongoing global pandemic and new public health crisis. Exempting emergency abortion care from EMTALA would also put at risk the rights of amici state residents who may need emergency medical care while working, studying or visiting in Texas.

In filing the brief, AG Nessel joined the attorneys general of California, New York, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington, and the District of Columbia.

A copy of the amicus brief can be found here.


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