EMTALA must be upheld to protect the sacred space between Idaho doctors and patients | Opinion

As the Supreme Court nears judgment on Moyle v. United States and Idaho v. United States, it is important to understand the real-world health and ethical consequences that will become daily occurrences for doctors and citizens if Idaho’s abortion laws are allowed to stand.

This summer, a Supreme Court decision is expected on whether a federal law that currently protects access to emergency medical care can override Idaho’s near-total abortion ban. This decision could have sweeping consequences for pregnant patients and their doctors across the country.

The Emergency Medical Treatment and Labor Act (EMTALA) was enacted by Congress in 1986, and signed into federal law by the- President Ronald Reagan. It has allowed any patient at nearly any ER in the country with an emergency condition the assurance that they’ll be seen and stabilized. It allows doctors to treat everyone without first having hospital administrators assess their ability to pay.

But in the aftermath of the Dobbs case, states like Idaho are attempting to rewrite what EMTALA means. In the case under consideration by the Supreme Court, Idaho argues that the emergency abortion care cannot be provided to stabilize that patient.

There are narrow exceptions, but they do not apply to every medical situation. If a doctor, to stabilize a patient, proceeds with emergency abortion care, they are subjected to numerous penalties — prison time, license suspension or revocation and civil fines — in addition to reputational impact — expense and trauma of a criminal trial regardless of the ultimate verdict.

Perhaps the authors of this bill intended to prevent elective abortions from happening. However, pregnancy termination in some medical situations is standard of care, even if the woman is not about to die immediately.

Let’s take, for example, a pregnancy complication known as HELLP syndrome, which can cause excessive bleeding (sometimes in the brain), kidney and liver failure in the mother, and placental separation in the fetus (abruptio placentae). When treated, mortality in HELLP is 1-2%, but if care is delayed or untreated, up to 24% of pregnant women with HELPP die from this condition. Treatment includes the removal of the fetus or termination of the pregnancy if fetal age is less than 20 weeks.

This case exemplifies how Idaho’s law becomes problematic by stepping into the sacred space between a patient and their doctor.

How would you respond in this situation? Imagine that you’re a doctor in a modern and well-staffed ER, and a young woman arrives in great pain, seeking help. She expects you to diagnose and treat her. She trusts you. You asses and explain that she has HELLP syndrome — not yet life-threatening, but maybe headed that way. Now, you are faced with the choice of providing evidence-based treatment (abortion) and a tragic scenario that unfolds in up to 1 in 4 cases (death) if left untreated.

As a doctor, you are trained and bound to the Hippocratic Oath to do no harm and save your patient’s life.

Yet in Idaho, it’s a crime to give definitive treatment that would save this woman’s life.

In a recent case involving a pregnant patient with HELPP syndrome, Idaho doctors had to have the patient airlifted to Oregon where she arrived “in a terribly weakened state.” Idaho doctors chose this option because they could not risk prison time for providing standard of care treatment. They had to subject this patient to the trauma and medical risk involved in sending her hundreds of miles away for a procedure they were perfectly capable of providing.

What would you do in this situation? By treating this woman with standard of care medical services, you risk losing your livelihood and your freedom. Engaging in “watchful waiting” without intervention subjects her to suffering and further complications. Must you wait until death is imminent so you can assert “affirmative defenses” in criminal court once you’re charged? Do you discuss these options with the patient or just tell her you have to airlift her away from her family for help because you can’t risk losing your ability to practice medicine?

How do we expect doctors to practice medicine under these circumstances?

As a whole, doctors are a committed force for good, practicing medicine between the hard edges of policy and the sacred space that exists between a patient and their doctor and care team. For many doctors, it is a calling, one they take seriously and have dedicated their lives to, one that can be painful at times. Society allows doctor and the patient to occupy a sacred space in confidence and trust. It’s a space that should be honored at all costs, with grace, as it allows doctors to connect with patients, give them the information they need, and develop a bond in which the most profound, life-impacting subjects are discussed.

So, accustomed to living between the hard edges of life and the grace of sacred spaces, doctors make the best decisions they can for and with the patient in front of us, balancing it all with the reality of life and death outcomes. When we cannot make these decisions with and for our patients, we call that a “moral injury” — that is, being prevented from doing something we know we can do and are sworn to do in the service of others.

Idaho has a fragile system of medical care for its population of about 850,000 women. There are less than 200 practicing OB/GYNs in the state (down more than 22% since the Dobbs case was decided). That is approximately one OB/GYN for every 412 square miles, giving Idaho the dubious distinction of having the lowest doctor/female patient ratio in the country. Idaho’s OBs stretch their practice over 303 distinct locations, and most smaller counties only have OBs supplied by larger metro areas. The state of Idaho has no obstetrics residency, and so OBs must be recruited from out-of-state. Not surprisingly, out-of-state applications dropped dramatically when Idaho started threatening to jail and fine doctors for doing their jobs. In the entire state, there are now only four doctors who specialize in high-risk obstetrics.

Idaho is ranked 51st (after Puerto Rico) in physician supply in the USA, and in the 10th percentile of maternal pregnancy outcomes in the USA. That means that 90% of the country has better pregnancy outcomes than Idaho has. Of the 44 counties in Idaho, only 22 counties have OB coverage, and only 12 counties have over 3 OBs in practice. It takes a minimum of three doctors to have 24/7 OB coverage. Three Idaho hospital labor and delivery departments have entirely closed since Dobbs.

The Idaho medical system is on the brink of failure.

Of the 200 remaining OBs, who are are well-trained, hard-working, dedicated, and brave, many are being recruited away or are considering leaving Idaho, or leaving the practice of obstetrics so that they don’t have to live with a moral dilemma that forces them to choose between the life of a vulnerable patient or going to jail and losing their livelihood and freedom.

Would you blame them?

What happens when just 10% more of the doctors leave? For those remaining, nights on-call become harder, there is more stress and less joy in their work, and then they, too, start looking for options out. Then what happens to the ongoing, non-emergency care of the women and girls in Idaho? Their care is in jeopardy, too, as the vast majority of what OB/GYNs do is take care of everyday issues, issues OBs are able to prevent from developing into life-threatening situations.

Years ago, one of the authors, Dr. Edward McEachern, was at the autopsy of a 27-year-old woman. He can still see her face vividly. She died of pregnancy complications, leaving two young children and her husband behind. This mother’s death could have been prevented, yet the same situation could occur in Idaho today.

In the ensuing morbidity and mortality conference, there were 32 people in attendance who had laid hands on this dear young woman. She had some of the world’s best caregivers, who were with her in her last moments as her collision of bad luck and bad disease occurred. Not one person there would have wanted to wait, to not act or to just keep watch. They gave everything we had to try to save her life that day, and the life of her baby. They felt defeated and sickened at the loss, even to the literal point of nausea.

She had two young girls, ages 2 and 4, and a solid hard-working husband. They were a thriving family. McEachern can still see the braid in her hair tied with a blue ribbon by one of her daughters. It all happened long ago, but he will never forget.

Imagine what it must feel like to our 200 or so dedicated Idaho OB/GYNs who are being told to stand by when a pregnant person, not yet on the brink of death but in a medical emergency situation, presents in front of them. Instead of providing standard-of-care treatment, they must now follow medical decisions being made by politicians who are not in the sacred space between doctor and patient.

The Idaho experience compels us to speak up and advocate for the Supreme Court to uphold EMTALA to protect a doctor’s ability to do what is best for their patient in the sacred space of care. Not only for Idaho, but for our country as a whole.