And the pressure isn’t just coming from the government.
On Aug. 12, the Center for Reproductive Rights filed a series of complaints to the Health and Human Services Department Office for Civil Rights representing patients who allege two Texas hospitals — Texas Health Arlington Memorial Hospital and Ascension Seton Williamson Hospital in Round Rock — improperly denied them emergency care.
According to the abortion rights group, these hospitals discharged patients with ectopic pregnancies without transferring them to a different hospital or stabilizing them, which can lead to internal bleeding that can be fatal.
Related: HHS to hospitals: Emergency abortion requirements still stand
The complainants say the providers thus didn't adhere to the Emergency Medical Treatment and Active Labor Act of 1986. That law, known as EMTALA, requires hospitals that accept Medicare to screen and treat or stabilize emergency patients. President Joe Biden's administration has repeatedly communicated that this includes abortions to preserve the life or health of pregnant patients.
The Center for Reproductive Rights' call for federal regulatory enforcement follows a lawsuit the National Women's Law Center filed on similar grounds against the University of Kansas Health System on behalf of a patient last month.
“Regardless of concerns about state law, EMTALA forbids hospitals like Ascension Williamson from refusing stabilizing treatment to patients with presumed or suspected ectopic pregnancies,” the Center for Reproductive Rights complaint says. "Moreover, although Texas law bans nearly all abortions, Texas law explicitly allows termination of ectopic pregnancies.”
In Texas, a clinician who provides an abortion faces up to life in prison, loss of their medical license and at least $100,000 in fines. But hospitals that do not comply with EMTALA can be subject to thousands of dollars in penalties per infraction and may be terminated from Medicare, which supplies a substantial portion of their revenue.
For instance, Medicare paid Texas Health Arlington Memorial Hospital, part of the Texas Health Resources system, $31.3 million in 2022, and paid Ascension Seton Williamson Hospital $34.1 million in 2023, according to their most recent cost reports to the Centers for Medicare and Medicaid Services.
Ascension, a St. Louis-based Catholic nonprofit health system, denies the allegations but will not comment further on the complaint, a spokesperson said. Patients who experience urgent, life-threatening conditions during pregnancy are provided “medically indicated treatment,” including the termination of ectopic pregnancies, the spokesperson said.
“Such treatments are clinically necessary and compliant within the law. While these situations are difficult and tragic for our patients, unfortunately the treatment of ectopic pregnancies are not unique or rare,” the spokesperson said. “The law does not prevent our clinicians from taking medically necessary actions. When misinformation about the law is irresponsibly spread, it increases the risk that future patients will avoid seeking appropriate treatment and tarnishes the quality and caring work our clinicians provide each and every day."
Texas Health Resources and HHS did not respond to requests for comment.
This legal uncertainty has created a "chilling effect" that is hampering care in states with strict abortion laws, said Dr. Nisha Verma, an Atlanta-based OB-GYN and abortion care provider who is a fellow at the American College of Obstetricians and Gynecologists. So far, the fear of criminal jeopardy is trumping concerns about EMTALA, she said.
“The folks at CMS have redone their complaint process for EMTALA and are trying to make it more accessible. They’re trying to really encourage it, because I think there's a feeling of there being less potential consequence. And I think that threat of criminal prosecution just, for a lot of people, feels more real,” Verma said. Federal penalties could shift that thinking, she said.
And more of these complaints and lawsuits will hit providers so long as the Supreme Court leaves Moyle v. United States, which involves the intersection of EMTALA and Idaho's abortion law, unsettled, Verma said.
The U.S. District Court for the District of Kansas will hear the National Women's Law Center suit against Kansas City-based University of Kansas Health System and the University of Kansas Hospital Authority.
Last year, the HHS Office of Inspector General determined that the University of Kansas Health System violated EMTALA, and the plaintiffs are seeking monetary damages. The OIG was still investigating the University of Kansas Health System as recently as May, according to a National Women’s Law Center spokesperson.
Unlike CMS, the OIG can fine hospitals it finds did not comply with EMTALA. HHS has not penalized the University of Kansas Health System, the provider confirmed in an email.
Patient lawsuits linked to HHS enforcement activities are likely to proliferate, and however the Kansas federal court rules could set a precedent to guide how other hospitals deal with conflicting laws, said Laurie Sobel, associate director for women's health policy at the research institution KFF.
The upcoming presidential election may be an impetus for plaintiffs to act quickly, Sobel said. Vice President Kamala Harris, the Democratic nominee, emphasizes her support for abortion rights and is likely to maintain the Biden administration's approach, at a minimum. But if former President Donald Trump, the Republican nominee, returns to the White House, the federal government is likely to change its stance on abortion and EMTALA, Sobel said.
