Two hospitals may have violated federal law in denying woman an emergency abortion, HHS says

Two hospitals that refused to provide an emergency abortion to a woman with life-threatening pregnancy complications are under investigation by the Department of Health and Human Services for violating federal law.

The agency on Monday said it had launched the first-ever investigations into violations of the Emergency Medical Treatment and Labor Act (EMTALA) for hospitals that refuse to provide abortions.  

After Roe v. Wade was overturned, the White House told hospitals and doctors the law requires them to provide abortions if there is a medical emergency and the health or life of the patient is at risk, even if doing so would run afoul of state law.

The government can investigate hospitals that receive federal funding for violations of the law.

“During her visits to two different hospitals, the patient was not offered the care that her doctors determined was necessary to stabilize those emergency medical conditions — not because of the clinical judgment of her providers, but because the hospital policies would not allow an abortion to be performed,” HHS said.

“This was a violation of the EMTALA protections that were designed to protect patients like her.”

The development comes as patients and providers attempt to navigate the patchwork of state abortion laws that have emerged as a result of the Supreme Court’s toppling of Roe last year, which for nearly a half-century recognized a constitutional right to abortion.

HHS would not confirm which hospitals were under investigation. But the National Women’s Law Center (NWLC) said it filed the initial complaint against two hospitals — Freeman Health System in Joplin, Missouri, and University of Kansas Hospital in Kansas City, Kansas.

Abortion is banned in Missouri, but there are exceptions to save the pregnant person’s life, or to prevent serious risk to the pregnant person’s physical health. Kansas largely allows abortions up until 22 weeks gestation. 

The complaint alleged that doctors at both hospitals refused to terminate the pregnancy of Mylissa Farmer after her water broke at approximately 18 weeks of pregnancy. She had lost all of her amniotic fluid and doctors told her the fetus was not expected to survive, but they would not perform an emergency abortion because they could still detect fetal heartbeat activity.

“This was a medical emergency, putting her at risk of severe blood loss, sepsis, or death. But she was denied the emergency care she needed,” the complaint alleged. 

Farmer ended up traveling to an abortion clinic in Illinois for emergency treatment. 

“Fortunately, this patient survived. But she never should have gone through the terrifying ordeal she experienced in the first place,” HHS Secretary Xavier Becerra said in a statement. “We want her, and every patient out there like her, to know that we will do everything we can to protect their lives and health, and to investigate and enforce the law to the fullest extent of our legal authority, in accordance with orders from the courts.”

Administration officials have said the federal government can penalize doctors or hospitals that fail to provide care and follow the law, though HHS did not say if the agency was taking punitive action in this case.

The Centers for Medicare and Medicaid Services sent the hospitals notices warning that they were in violation of the law, and asked them to correct the problems.

As more states move to enforce strict limits or bans on abortion, hospitals and providers are left grappling with figuring out what qualifies as a life threatening emergency. The consequences of running afoul of state law can be severe, as some states threaten providers with criminal or civil penalties for providing abortions.    

Becerra on Monday sent a letter to hospital and provider associations across the country to tell them about the investigations and clarify the responsibilities of their members under federal law.  

“While many state laws have recently changed, it’s important to know that the federal EMTALA requirements have not changed, and continue to require that healthcare professionals offer treatment, including abortion care, that the provider reasonably determines is necessary to stabilize the patient’s emergency medical condition,” Becerra wrote. 

The administration’s view of EMTALA has been challenged, with mixed results. A federal judge in Texas last year blocked HHS from enforcing its guidance in the state. The agency recently appealed.

HHS successfully argued last August that Idaho’s strict abortion ban violated federal law, but the law is still in effect and almost all abortions are completely banned. The practical impact was that providers can’t be punished for performing an abortion in the event of a medical emergency.