How Close to Death Must a Person Be to Get an Abortion?

A woman in Oklahoma was told to wait in a hospital parking lot until she was sick enough to qualify for an abortion. A Florida patient ended up on a ventilator after being turned away from the ER when her water broke early in her second trimester. A woman experiencing a miscarriage was filling diapers with blood and still was sent away from an Ohio hospital. Since the overturning of Roe v. Wade, hospital staff who are either confused by their state’s abortion bans or fearful of running into legal trouble have turned away pregnant people experiencing medical emergencies, and a legal challenge before the Supreme Court may make the landscape even worse.

The justices will hear oral arguments Wednesday in their second major abortion case since Dobbs. It revolves around a Reagan-era law that requires hospitals receiving federal funding to stabilize patients who need emergency treatment. The Biden administration has said the Emergency Medical Treatment and Labor Act, or EMTALA, applies to pregnant people who need emergency abortions; in practice, however, hospitals in states with abortion bans have not followed the standard of care. Experts say the ruling could affect pregnant people nationwide, regardless of whether abortion is legal in their state, and potentially set the stage for the Court to recognize fetal personhood in the future. Here’s everything you need to know about the case.

What is EMTALA, exactly?

EMTALA was enacted in 1986 to ensure that hospitals receiving federal funding (think Medicaid and Medicare) provide stabilizing care to any patient who arrives at an ER department with an emergency condition — regardless of their insurance coverage or whether they can pay. Patients can file a complaint against a hospital if it violates the law, which leads to an investigation. “Quite a lot of hospitals are seriously afraid of EMTALA complaints because if you lose federal funding for being out of compliance, that’s enormous,” says Melissa Murray, a reproductive-rights expert and law professor at New York University. “Because of the broad sweep of the law, it is actually a very strong deterrent.”

EMTALA doesn’t have an explicit carve out for abortions. But the Biden administration issued guidance after Dobbs affirming that the law applies to patients in need of emergency abortion care even if state legislation bans the procedure. “We’re talking about situations where the person’s health, life, or fertility is on the line,” says Rabia Muqaddam, a senior staff attorney at the Center for Reproductive Rights, which filed an amicus brief on behalf of women who have been denied care. “These are not cases where a pregnancy will result in a child that a person could take home. Denying them care is just punishing people at their most vulnerable moment.”

Idaho’s near-total abortion ban, which went into effect in August 2022, allows for a pregnancy to be terminated only when “necessary to prevent the death of the pregnant woman” and makes performing an abortion a felony punishable by up to five years in prison. The Biden administration later sued the state, arguing that, regardless of how narrow Idaho’s exception is, EMTALA requires hospitals to provide emergency abortion care when a patient’s health is “in serious jeopardy.” A district court and the Ninth Circuit Court of Appeals blocked the state from enforcing the ban in medical emergencies while the challenge played out. In a separate case in Texas, lower courts decided that EMTALA does exclude abortions. Amid these conflicting rulings, the Supreme Court announced it was taking up the Idaho challenge. The Court also allowed the state to enforce its ban while the case is being heard, effectively nullifying EMTALA for patients who need emergency abortion care.

How did the overturning of Roe v. Wade affect emergency abortion care?

Muqaddam says the overturning of Roe was the catalyst for these cases. “Everybody understood that if a patient showed up in an emergency room with preterm premature rupture of membrane, for example, that EMTALA required the hospital to provide an abortion to stabilize them. This was uncontroversial for decades,” she says. “Why is that controversial now? Dobbs.”

In the nearly two years since, pregnant people have been denied an abortion in cases where their lives are at risk, leading them to bleed profusely, experience sepsis, and become infertile. Some of these patients have sued their state, saying medical exceptions to abortion bans do not work in practice. Patients in Idaho have faced similar struggles, according to a lawsuit filed by the Center for Reproductive Rights on behalf of four people who were forced to travel elsewhere for abortion care, two local OB/GYNs, and the Idaho Academy of Family Physicians, which represents more than 600 health-care providers in the state.

“Idaho is saying, ‘Well, we don’t need EMTALA. We have these exceptions,’” Muqaddam says. “Except the exceptions are so confusing that half the doctors who are maternal-fetal medicine specialists have abandoned the state.”

The ban has put doctors in an impossible position, according to Caitlin Gustafson, a family physician in Idaho. “Can I continue to replace her blood loss fast enough? How many organ systems must be failing? Can a patient be hours away from death before I intervene, or does it have to be minutes?” she writes in a piece for Time. “These are the callous questions doctors are now forced to think through, all the while our patient is counting on us to do the right thing and put their needs first.”

Even with EMTALA in place, abortion bans have led to widespread confusion and fear among health-care providers in hospitals across the nation. A recent Associated Press report looking at EMTALA complaints in 19 states found an increase in the number of cases involving pregnant patients who were turned away from emergency rooms in the months after Dobbs. One case involved a woman in Texas who miscarried in the restroom of an emergency-room lobby after staff refused to check her in. Another complaint was filed after a North Carolina woman went to the ER complaining of stomach pain and staff said they couldn’t perform an ultrasound; she gave birth in a car while en route to another hospital, and her baby died. Muqaddam says these complaints offer a preview of “the dramatic harm that will result from a negative ruling” in the case.

How does fetal personhood come into play?

Idaho is represented by Alliance Defending Freedom — the same conservative Christian legal organization that helped overturn Roe and brought a legal challenge against the FDA’s approval of mifepristone, one of the two drugs used in medication abortions. In its brief, the ADF pushed the idea that, from the moment of conception, fetuses have the same rights as people. The group argues that EMTALA actually applies to the pregnant person and “the unborn child,” making hospitals responsible for stabilizing both. Because abortion always terminates the “life” of a fetus, the ADF says it is never necessary treatment for pregnant patients in emergency situations.

The arguments could open the door for the Court to further embrace fetal rights, Murray says. She points out that the majority opinion in Dobbs, which was written by Justice Samuel Alito, gave many nods to the concept of fetal personhood. “He referred to the prospect of unborn children. He noted that there are those in the public who would regard the fetus as an unborn person,” she says. “He was acknowledging the fact that fetal personhood is a massive element of the anti-abortion movement, and I think he emboldened other federal judges to go even further.” U.S. District Judge Matthew Kacsmaryk’s opinion in the mifepristone case, for example, was riddled with anti-abortion language and misinformation.

While Murray doesn’t see this as the case that will establish fetal personhood in the U.S., she believes the justices could use it to create precedent. “This case could be a vehicle for laying a very firm foundation for recognizing fetal personhood in a few years,” she adds.

How could the decision impact abortion care?

Muqaddam says the Court’s decision to take up the case while allowing the Idaho ban to stand was “alarming,” with one possible adverse outcome being that the justices rule EMTALA doesn’t preempt state law. The Court could also rule that EMTALA never applied to abortion care. If that is the case, hospitals across the country would be able to turn away pregnant people who need emergency abortion care, even if their state laws allow the procedure.

“The Court could make it so that every single person in this country, no matter what is happening to them, is entitled to stabilizing treatment in a hospital for an emergency medical condition except for people whose pregnancies are threatening their life,” Muqaddam says. “That’s just untenable.”

The case could have implications beyond abortion care. “There are all manner of health-related services that have been demonized by people,” Muqaddam says, pointing to barriers the LGBTQ+ community, low-income patients, and people struggling with addiction already face when seeking any kind of treatment. “If we say that there are ideological reasons to allow people to deny others stabilizing care, it is a very slippery slope.”

If the justices rule that EMTALA doesn’t override Idaho’s abortion ban, it would open the door for legal challenges around whether other federal measures preempt certain state laws, says Murray. She adds that the possibility of setting a new precedent when it comes to the question of federal supremacy may dissuade the Court’s institutionalist justices who are worried about the crisis of credibility they face themselves: Recent polls found that around 60 percent of Americans disapproved of the Court’s job.

“This is a Court that has made clear its antipathy for reproductive rights and its antipathy for women in a million different ways,” Murray says. “I don’t know that the prospect of women bleeding out in parking lots is going to sway them particularly, but I’m hoping that the institutional concerns and concerns about the Court’s legitimacy in the eyes of the public will be a more persuasive argument.”

The Cut offers an online tool that allows you to search by Zip Code for professional providers, including clinics, hospitals, and independent OB/GYNs, as well as abortion funds, transportation options, and information for remote resources like receiving the abortion pill by mail. For legal guidance, contact Repro Legal Helpline at 844-868-2812 or the Abortion Defense Network.