How Trump Administration's Move On Emergency Abortions Doesn't Change Federal Law

Forbes Breaking News

Katie O'Connor, Senior Director of Federal Abortion Policy for the National Women's Law Center, spoke to ForbesWomen editor Maggie McGrath about the Trump administration rescinding a guideline around emergency healthcare for pregnant people.

Transcript

00:00Hi, everyone. I'm Maggie McGrath, senior editor at Forbes and editor of Forbes Women.

00:08The Trump administration this week rescinded a policy from the Biden administration that

00:14effectively protected pregnant people in emergency medical situations. This rescinding leaves open

00:23a ton of questions for pregnant patients and what it means for their care in emergency

00:28settings. Joining me to discuss this very important issue is Katie O'Connor. She is the senior

00:35director of federal abortion policy at the National Women's Law Center. Katie, thank you so much for

00:41joining us. Thanks for having me, Maggie. So I was speaking in very broad terms because when it comes

00:47to EMTALA, the specifications can get a little complicated, but can you lay out for us what did

00:53federal policy say before this week? And what is the Trump administration saying now when it comes

00:59to pregnant patients who enter an emergency room and might require emergency abortion care?

01:06Yeah, so this all started, well, I should start with saying, you know, EMTALA is a 40-year-old law.

01:11It was passed by an overwhelmingly bipartisan majority. It has been understood for all of its

01:20history to protect everybody who goes into an emergency room needing emergency care, needing

01:26stabilizing care. And that has never been understood to exclude pregnant people. So there's a wealth of

01:35examples of pregnant people going into emergency rooms, receiving this care because of EMTALA.

01:42And after, in the immediate aftermath of the Dobbs decision overturning Roe versus Wade, the Biden

01:50administration issued guidance. And all that guidance did was reminded hospitals of their existing

01:56obligations under EMTALA, reminding them that even if there's an abortion ban in the state, EMTALA is a federal

02:03law that preempts state law and that requires emergency abortion care where that is the necessary

02:09stabilizing care. So what we saw on Tuesday was this administration rescind that guidance. But I think

02:17the one thing I want everybody to understand is that this administration can rescind the guidance, but it

02:22can't change the underlying law. And so EMTALA, the underlying law, continues to protect people's

02:28right to get this care where it's the necessary stabilizing care.

02:33I think that's a really important point. And can we just go into a potential

02:36situation, an anecdote, a hypothetical anecdote for when a situation would require an emergency

02:43abortion? So it's a patient who is pregnant with a wanted pregnancy, but she experiences some kind of

02:50medical emergency and doctors make the recommendation that to preserve her life, there needs to be an

02:58abortion. Is that kind of the general, very broad hypothetical proceeding here?

03:03That's correct. With one caveat. So most of the abortion bans in the states that ban abortion

03:11do have exceptions that vary in sort of their narrowness. They're all pretty narrow. But some of

03:19them allow abortions in the case where it's needed to preserve a person's health. And then in some states

03:25like Idaho, for example, the only exception is to prevent the death of the pregnant person.

03:30EMTALA is important because it actually protects access to abortion care where it is necessary to

03:38preserve a person's health. So it's broader than just life-saving care. It is also to ensure that a

03:46person's health doesn't deteriorate.

03:49That's an important distinction. And now you mentioned some of the state-by-state differences,

03:53and I think this is important to hit on because folks who've been paying close attention to this

03:57might remember that we were talking about EMTALA last year as it related to state-specific Supreme

04:02Court cases. Katie, can you take us through where we stood on a state-by-state basis? And was EMTALA

04:09overridden in any one state before this week?

04:14That is a tricky question. So there have been a couple of cases that were filed since the Dobbs decision.

04:21One of the cases was actually filed by the Biden administration against the state of Texas.

04:26And the Biden administration said, your abortion ban is too narrow. There are cases where EMTALA

04:34would require a doctor to provide an emergency abortion, and your state abortion ban would prohibit

04:41that care. And so the Biden administration said, where those two laws conflict, EMTALA overrules the

04:50state law. And that's the case that the Biden administration was litigating. And as you might

04:55remember, a couple of months ago, the Trump administration decided to drop that case. In the

05:02meantime, there is a large health care provider in Idaho called St. Luke's. It is the top health care

05:10provider in the state. It filed its own lawsuit, essentially like following up with what the Biden

05:17administration had done in its lawsuit. That case is pretty slow moving, but it will eventually make

05:22it to the Supreme Court. The other case that I will mention is a case in Texas where the state of Texas

05:29filed suit against the Department of Health and Human Services, challenging the guidance itself.

05:35The Fifth Circuit actually ruled in favor of the state of Texas. And so the guidance is not in effect

05:43in Texas. But as I said earlier in this interview, the guidance doesn't really matter because the

05:49statute itself requires this care. So all of these cases are ultimately just contributing to the

05:57confusion that hospitals and providers and patients are experiencing and have been experiencing since

06:03the Dobbs decision.

06:05So effectively, we have a federal guidance saying doctors must provide life-saving, life-preserving

06:13care for patients. If that patient is pregnant and if that life-preserving care does involve an

06:19abortion, those doctors need to perform the abortion whether or not the state that they're in is

06:25quibbling over the matter. Is that kind of fair?

06:28That's right. It's essentially, you know, our constitutional system works as under the supremacy

06:34clause, like the federal statutes are supreme to state statutes. And so what the federal law says

06:43is what goes. And that's what the Biden guidance had indicated. And it is the fights over this that

06:52are contributing to the confusion and fear, honestly.

06:58And that's why I'm pressing on the specifics of the law, because I think when individual people

07:03see these headlines, hear these headlines, they might not know what it means for them.

07:09So what are you hearing at the National Women's Law Center? Are patients confused? Are they calling

07:14saying, I don't know what to do? What do I say to my doctor? Or what are the conversations you've

07:19been having this week?

07:21I think people are still waiting to see what the fallout from the rescission of this guidance is

07:26going to be, to be perfectly honest. You have a lot of nationwide organizations that represent

07:33emergency health care providers, that represent obstetricians and gynecologists, that represent

07:40other health care systems. And I think they are all sorting through what this is ultimately going to

07:45mean. And so I unfortunately don't have a lot of, a lot of intel on that other than to say,

07:53again, this is a shift. And it is, you know, it has just been three years since Dobbs,

08:00and it's been a constantly shifting legal landscape in a lot of states around what care is required,

08:07what care is allowed, and what care is prohibited. And what happened this week is just contributing

08:14to that shifting legal landscape.

08:18How much of a surprise was this week's announcement, to you at least? Because I have to say,

08:23from the Trump administration, given all the focus on tariffs and some of the other issues that have

08:29been in the headlines, I was surprised to see MTALA pop up when it did. But had there been inklings that

08:36they were about to come out with this? There had been. And this is primarily because there was another

08:42lawsuit that was filed in January of this year in the Mill District of Tennessee, so in a federal court

08:49in Tennessee. And it was filed by an organization called the Catholic Medical Association. And that lawsuit

08:55was also a challenge to the Biden administration's guidance on MTALA. So we knew that there was a

09:01deadline coming up for the Trump administration to respond to that lawsuit. And that sort of forced

09:07their hand here. I agree with you that it's kind of a weird time that there are, there's a lot of other

09:14political news happening. But that was what forced the Trump administration to do this when it did it.

09:21A lot of political news, but let's be clear, this is important because it affects people's lives.

09:27Can you give a sense for what the repercussions of this announcement could be if it stands,

09:34if somehow MTALA ceases to be the federal guidance?

09:40Yeah. So again, I mean, I hope and trust that hospitals are going to understand that the statute

09:46itself, that MTALA hasn't changed, and that this is just, this is just a rescission of guidance that

09:55reminded hospitals their obligation. I think what is most likely to happen, this is probably a sign that

10:02this administration isn't going to enforce MTALA the way that the past administration did, and frankly,

10:09the way that past administrations for decades have done. So I think that's probably the,

10:15the concrete effect here is we're just not going to see as many enforcement actions.

10:20And what could be the follow-on for patient care? Will people die?

10:26Yes. I think people will suffer unnecessarily, and some will die because of the confusion that

10:33is caused by what the Trump administration has done this week.

10:36What are the steps forward? The perhaps ways that your organization and other national

10:44women's reproductive health care organizations are perhaps fighting this or trying to

10:51soften some of the confusion? I recognize that in the years since the Dobbs decision came down,

10:56that legal landscape that you laid out state by state, it can be very confusing. But what are the

11:01concrete steps that you and others will be taking in the aftermath of the Trump administration's

11:06announcement this week?

11:07Well, I think a couple of things are going to happen. First of all, I mentioned a lawsuit that

11:13is still being litigated in Idaho. That lawsuit will take a while to get to the Supreme Court,

11:20but I do think it'll get to the Supreme Court and probably in the next couple of years.

11:23That lawsuit will hopefully provide the clarity that we all need. And we would hope and expect for

11:31the Supreme Court to say unequivocally that EMTALA requires providers to provide abortion care where

11:39it is the necessary care for a person who's experiencing a medical emergency. Until the Supreme Court says

11:47that and says that explicitly, I think we will continue to see a lot of fear and a lot of confusion

11:53in emergency rooms across the country. But I do hope and expect that hospitals will look at what

12:02happened this week and recognize that it doesn't change their legal obligations, that it is only a

12:08signal of the priorities of this administration, which is obviously appalling that this administration

12:16is abandoning pregnant people when they're in need of emergency care. But again, it doesn't change the

12:24underlying law here.

12:27I think that's an important note. It's effectively a political message, not a medical message.

12:32That's right.

12:33Is there anything else our Forbes audience should know and understand about this week's Trump administration

12:39announcement regarding guidance around emergency abortion care in the United States?

12:43I don't think I have anything to add. I would just, you know, I am very disappointed that this happened.

12:53I am also not surprised. Something that I continue to think about is that we are less than, we are just shy of

13:03three years out from the overturning of Roe versus Wade.

13:05It has been clear to me and to most people who do this work for a long time that the anti-abortion movement was

13:14never going to be content with overturning Roe versus Wade. It was never going to stop until abortion is

13:21prohibited everywhere for everyone and under every circumstance. And I'm just surprised that it has only

13:29taken three years for us to get to this point where we are, where pregnant people are, you know,

13:37begging for their lives.

13:40Sobering words. Katie O'Connor from the National Women's Law Center. Thank you so much for joining us.

13:45We'll have to have you back as we continue to follow this issue. But for the meantime, thank you so much.

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