EMTALA, a vital health law you’ve never heard of, is in danger

Anyone who has gone to a hospital’s emergency room expecting to receive medical care — not knowing where else to turn, uncertain whether a loved one is having a medical emergency and what can be done about it, or unsure if they can pay — has relied on a law they couldn’t name: the Emergency Medical Treatment and Labor Act (EMTALA).

Congress enacted this law in 1986. It creates a point of rescue for anyone with a medical emergency. It is the only law in the country that ensures no matter who you are or what circumstance you are in, a hospital emergency department will provide you with emergency care.

Since then, EMTALA has protected universal access to care. But this essential law is now under threat because antiabortion lawmakers in Idaho are asking the Supreme Court this week to carve out exceptions to it. If the Court allows this, more carve-outs can be expected, and protection for universal access to care will be endangered.

The backstory to EMTALA is enlightening. Congress created it in response to hospitals “dumping” patients who were clearly in need of emergency medical care but who were uninsured, often Black, or otherwise undesirable to the hospital staff. Even nonprofit hospitals, which are supposed to serve the community in which they are located, performed this unethical practice. A few states tried to prevent dumping, but Congress got involved when the practice appeared to be so widespread, and state policies so inadequate, that a national remedy was needed.

EMTALA relies on emergency department physicians to determine, according to evidence-based standards, whether a medical emergency exists and how to handle it. The law also protects pregnant people experiencing labor because some hospitals had refused care for these people, and they and their newborns suffered grave injuries — and some died — as a result.

On April 24, the U.S. Supreme Court will hear a state challenge to EMTALA’s universal access rule. Idaho claims its laws criminalizing abortion, with only an exception to save the life of the pregnant person, are not preempted by EMTALA.

This case exists because, on June 24, 2022, the Supreme Court overturned Roe v. Wade in its Dobbs v. Jackson Women’s Health Organization decision. The Court wrote seven times it would “return abortion to the people and their elected representatives,” assuming this would free the judiciary of abortion cases. But overturning the 50-year constitutional protection for access to abortion produced confusion, chaos, and conflict across states, and between state and federal laws. Dobbs allowed state trigger laws to activate, which criminalized abortion at the moment Roe v. Wade was overturned, and empowered states to enact new laws restricting abortion access. This has created a wildly uneven legal landscape across the states.

In response to widespread legal uncertainty following Dobbs, the Department of Health and Human Services sent a reminder to hospitals that, under EMTALA, they are responsible for treating all medical emergencies. This includes providing an abortion if that is the standard of care for a patient’s condition. Idaho and other abortion-restrictive states claim they do not need to follow EMTALA when it comes to abortion.

As I and others stated in an amicus brief submitted to the Supreme Court, this is not a hard case. EMTALA is a national law that has had bipartisan support and exists for important reasons. Before 1986, states barely responded when hospitals dumped “undesirable” patients. Dumping has been occurring in the wake of Dobbs, albeit for different reasons.

Health care providers are now afraid of states’ restrictive laws and whether they might lose their licenses, be criminally charged, or face steep fines for providing care that, in their learned view, is medically necessary. Doctors hold back because they do not know whether they can act without losing their license or being charged with a crime, and people needing emergency care are suffering as a result.

The media regularly publish stories about people being turned away while enduring obvious emergencies related to their pregnancies. In fact, patients like Kate Cox in Texas and others are suing over such harms. And the dangers extend beyond pregnancy. Some people with cancer, for example, are experiencing limits on their care after Dobbs.

Contrary to Idaho’s arguments, the Department of Health and Human Services did not change anything about EMTALA’s rules — it is the Supreme Court that changed the landscape of laws in the U.S. It is important to remember that returning “abortion to the people and their elected representatives” does not apply only to states — members of Congress are also the people’s representatives. EMTALA protects the people in ways that states have not.

Carve-outs would not stop with abortion care. EMTALA is a unique law protecting a right to emergency care in the U.S. If the Court allows states like Idaho to chip away at the protection it offers, it would be undermined for all Americans.

Nicole Huberfeld is Edward R. Utley Professor of Health Law at Boston University School of Law and School of Public Health. She is the co-director of the BU Program on Reproductive Justice, and is a lead author of the Legal Scholars amicus brief the Idaho case, Moyle v. U.S.