The federal government has launched its first confirmed investigation of an alleged denial of an abortion to a woman experiencing a medical emergency.
In late October, the Missouri Department of Health and Senior Services opened an investigation at Freeman Hospital in Joplin, Missouri, under the federal Emergency Medical Treatment and Labor Act, department spokesperson Lisa Cox told KHN. It was authorized by the federal Centers for Medicare & Medicaid Services, which contracts with state agencies to conduct EMTALA surveys.
The case involves a woman whose water broke early in her pregnancy, but the hospital refused to let doctors perform an abortion. She eventually sought medical help outside the state.
The Biden administration in July had reminded hospitals and physicians in the 13 states that have outlawed most abortions that federal law requires them to provide life- or health-saving medical services — including abortion, if necessary — to patients experiencing emergency pregnancy complications.
The Missouri investigation is significant because EMTALA is one of the government’s strongest tools to ensure that patients with pregnancy complications receive needed abortions following the Supreme Court’s June ruling erasing the constitutional right to abortion. The 1986 EMTALA law requires hospitals and physicians to provide screening and stabilizing treatment in emergency situations.
The July policy guidance from the Department of Health and Human Services stressed that EMTALA supersedes any state law barring abortion, and that hospitals and physicians who don’t comply with the federal mandate could face civil fines and termination from the Medicare and Medicaid programs.
HHS cited several emergency pregnancy situations in which abortion might be required to prevent permanent injury or death, such as ectopic pregnancies, severe blood pressure spikes known as preeclampsia, and premature rupture of the membrane causing a woman’s water to break before her pregnancy is viable, which can lead to serious infections and threaten her life.
Other EMTALA investigations of hospitals and physicians alleged to have denied medically necessary emergency abortions have been opened in Texas but haven’t been publicly reported, said Greer Donley, an associate law professor at the University of Pittsburgh, who studies abortion issues.
CMS does not disclose EMTALA investigations before they have been completed and findings and penalties have been finalized, and states generally don’t publicize them either. But patients or hospital staff members might talk, particularly on issues like abortion if they strongly object to the alleged denial of services.
The Missouri investigation involves the case of Mylissa Farmer, 41, who went to Freeman Hospital on Aug. 2, after her water broke nearly 18 weeks into her pregnancy, followed by bleeding and cramping. Physicians there reportedly recommended terminating the pregnancy because it was not viable, Farmer had lost amniotic fluid, and she faced a risk of serious infection. Her case is described in detail in an Oct. 19 article in the Springfield News-Leader, which Farmer, in a brief interview with KHN, said was accurate. Farmer confirmed she was contacted and questioned in October for the EMTALA investigation.
According to the newspaper article, Farmer’s physicians, after consulting with Freeman Hospital’s legal team, told her they could not offer her the standard procedure to terminate the pregnancy — dilation and evacuation — due to Missouri’s law banning all abortions, which took effect June 24.
That position was different from what Farmer said the physicians told her. “My doctors said it was an emergency, and I felt it was an emergency,” she told KHN.
Even though the law includes an exception for “medical emergency,” the doctors and hospital lawyers allegedly determined that her case did not qualify for that exception. Providers found to violate the law can be prosecuted for a class B felony, as well as have their license to practice revoked. The burden of proof is on the providers to show that the abortion was performed because of a medical emergency.
Abortion opponents argue that most state anti-abortion laws include adequate exceptions for the health and life of the pregnant woman. But physicians and hospital lawyers say the exceptions are vaguely worded, and what really matters is how prosecutors in these conservative states interpret them.
Physicians say they need flexibility in deciding when there is an emergency that requires a pregnancy to be terminated and that it’s dangerous to have politicians and lawyers looking over their shoulders. “This is medicine, not law, and it’s very complicated,” said Dr. Kim Puterbaugh, a Cleveland OB-GYN who is a past president of the Society of OB/GYN Hospitalists. Setting arbitrary limits on blood pressure or bleeding when determining if a pregnancy is “in distress, that’s ridiculous. There are too many variables.”
Democratic lawmakers in Missouri have pushed the governor, the attorney general, and state health officials for a clearer definition of the exception for medical emergencies.
Farmer and her boyfriend, who both wanted a child, called multiple hospitals in Kansas and Illinois to see whether she could deliver safely but were repeatedly told that the pregnancy wasn’t viable and that her health was at risk. She eventually got an appointment at the Hope Clinic for Women, across the state border in Granite City, Illinois, where she went into labor and received a procedure to end the pregnancy Aug. 6.
Freeman Hospital officials did not respond to repeated requests for comment.
“The Missouri statute puts doctors and providers between a rock and a hard place,” said Genevieve Scott, senior counsel at the Center for Reproductive Rights in New York. “It creates an extreme deterrent to providing care in medical emergencies, given the risk of providers facing prosecution and losing their livelihood. That clearly threatens the health and lives of every pregnant person in the state.”
The Missouri investigation could provoke a new legal showdown between the Biden administration and Republican state elected officials who favor strict abortion bans. The administration already is locked in litigation in Texas and Idaho over the July guidance on EMTALA.
A Texas federal judge issued a temporary restraining order in August saying the guidance was “unauthorized” and went beyond EMTALA in requiring abortions in emergency situations. Federal officials have appealed. But an Idaho federal judge sided with the administration’s position, and Idaho officials have asked him to reconsider his ruling.
Experts doubt whether such litigation will block EMTALA enforcement in abortion-related situations like the Missouri case. The investigation of the actions of Freeman Hospital and its physicians will solely examine whether they complied with the requirements of federal law, not state law, said Katie Keith, an associate research professor at the Georgetown University Health Policy Institute. Still, she added, the hospital could cite the Missouri anti-abortion law as a defense, setting up a court fight down the line.
Farmer’s case also is playing a role in the U.S. Senate race in Missouri between Republican Attorney General Eric Schmitt and Democratic nominee Trudy Busch Valentine, a nurse. Farmer appeared in a TV ad for Busch Valentine criticizing Schmitt for issuing a proclamation on June 24 that put Missouri’s anti-abortion trigger law into effect. “My Missouri doctors weren’t allowed to give me the care I needed, all because of the mandate Eric Schmitt put into place,” Farmer said in the ad. “Eric Schmitt doesn’t care about women like me.”
Schmitt’s campaign lawyers sent letters to the TV stations carrying the ad demanding that it be taken off the air, according to local news reports. They claimed it was inaccurate in stating that women could go to prison for having an abortion and failing to mention that it includes an exception to protect the health of the patient.
Cases similar to Farmer’s likely are happening every day in states that have banned abortions, and more EMTALA investigations will be launched, warned Sara Rosenbaum, a professor of health law and policy at George Washington University. This places hospitals and physicians in an excruciating spot, she added. CMS has said it will initiate investigations based on credible information including news reports.
An EMTALA investigation “is one of the worst things that can happen to you,” she said, speaking about providers, “because it puts a label on you that you denied what the woman needed to survive when it was clear that the baby was lost.”