June 24 was a day that will mark the history of reproductive health care in this country before and after the reversal of Roe vs. Wade. We are still looking to navigate the uncharted terrain as I write this in July, not even three weeks into the chapter. It’s summer in Virginia, but the past few weeks since the Supreme Court’s disorienting decision have felt like we’ve been stumbling through a patriarchal blizzard.
A wave of fears and questions swirl through my mind as politicians impose black and white laws on the gray areas we face in modern medicine. I didn’t go to medical school to be criminalized for patient care, but here I fear breaking the law as I try to deal with reproductive health issues that aren’t always as clear as legislators assume so.
How can I apply laws based on – hopefully – medical textbooks when real-world patients rarely have textbook presentations? How do I negotiate laws based on the exact number of weeks since conception when discrepancies between last known menstrual periods, serum hCG levels and ultrasound results confuse gestational age?
How do I tell spontaneous miscarriages from self-managed miscarriages when patients are too scared to be honest with me? If patients seeking an abortion after rape or incest are required to turn over medical reports to law enforcement, how can I determine the authenticity of the reports and what are the consequences if I am wrong?
We face an avalanche of varying approaches with states empowered to regulate abortion. How will EPs working in multiple states keep track of multiple sets of laws, each with their own unique language about when a procedure is appropriate and when it is a crime? Many of these state laws are obscure and open to interpretation as to how close a patient is to death before it is legal for her to have a life-saving abortion. Could differences in interpretation lead to prosecution for providing evidence-based care?
Emtala trumps state law
Like many EPs, I’m still in limbo, waiting to see how the laws will change in my state. Virginia Governor Glenn Youngkin announced the same day as the Supreme Court’s decision Dobbs decision that he intended to introduce legislation to limit abortions. Abortion is currently legal here, but what will the landscape look like in the future? I’m afraid to see a law here like Oklahoma and Texas allowing private citizens to sue anyone who helps a woman to have an abortion.
Should I be worried about abortion vigilantes throwing accusations at me? Will I be required, in a political and legislative environment that increasingly criminalizes pregnant women, to abide by state laws that require me to notify law enforcement when I suspect pregnant patients are using Drugs ?
The Biden administration points to a beacon of federal legislation that is supposed to help those of us in emergency medicine find our way: our old friend, the Emergency Medical Treatment and Active Labor Act. Every emergency doctor has probably taken too many training modules on this law. We have all at one time thought of EMTALA as a pain in the neck, but could this policy now protect us?
Passed by Congress in 1987, the EMTALA states that every patient presenting to an emergency department, including those who are pregnant or experiencing pregnancy loss, has the right to receive medical examination, stabilization, and referral to appropriate care. What does this mean for patients who end up in emergency departments in states that have already banned or will ban abortions now that roe deer was knocked down?
The Centers for Medicare & Medicaid Services sent a memo to state investigative agencies clarifying EMTALA’s obligations regarding pregnant patients. (July 11, 2022; https://go.cms.gov/3yDbOPe.) He said a physician’s professional and legal obligation to provide stabilizing medical treatment takes precedence over any conflicting state law. A press release issued the same day by the Department of Health and Human Services made it clear to the public that federal law prevails over state abortion bans when abortion is the stabilizing treatment for an emerging medical condition. . (July 11, 2022; https://bit.ly/3O7tqIC.)
EMTALA is clear
State laws may be vague about what defines an emergent medical condition in pregnancy, but EMTALA is not: EPs make that call. Communications from CMS and HHS emphasized that the EP managing the patient also makes the decision about what treatment is needed to stabilize a patient, including methotrexate therapy or dilation and curettage. Will the EMTALA principles really be enough to protect us from situations where we find ourselves with the choice of withholding life-saving treatment or facing criminal prosecution from our state?
Will the principles of HIPAA protect patients and physicians in situations where we criminalize patients by reporting them when they seek reproductive health care or suffer from substance use disorders during pregnancy? Federal HIPAA law protects sensitive patient health information from disclosure without patient consent. Some articles state that HIPAA generally takes precedence over any conflicting state law. (American Health Information Management Association. April 2003; https://bit.ly/3IDC0xv; Institute of Medicine. 2006; https://bit.ly/3Ps41u9.)
But the HHS guidance documents don’t actually offer much clear guidance, advising that “providers who may be concerned about their obligations to disclose information regarding abortion or other reproductive health care should ask legal advice regarding their responsibilities under other federal and state laws. (HHS. June 29, 2022; https://bit.ly/3IELlVY.)
We should be able to approach pregnant patients with the same discretion that we use for patients who have overdosed on heroin, as caregivers, not as whistleblowers. Will we see further communications from HHS explaining how HIPAA is ahead of state law for pregnant patients, just as we saw for EMTALA this month?
It may be mildly comforting to think that HIPAA and EMTALA might help, but I still don’t trust lawmakers to chart a course that maintains reproductive health decisions between patients and doctors. Will they bring enough physician voices to the table when they craft new abortion legislation? How can we best protect our pregnant patients in this frightening new territory where women’s health rights have been set back five decades?
All the worries and questions of the past few weeks have brought me back to the same place. The most important beacon in patient care in this post-roe deer Patriarchal blizzard, brighter than legislative beacons, will always be the Hippocratic oath I took. All of these other questions are secondary to what is best for my patient’s health. My moral compass will never allow me to let a patient die because of someone’s political agenda. I will continue to do what is right for my patients, regardless of the political climate. All. Time.