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Maryland AG joins coalition opposing laws that restrict emergency abortion care

People protest in response to the Dobbs v. Jackson Women’s Health Organization ruling in front of the U.S. Supreme Court. The court’s decision overturns the landmark Roe v. Wade case and erases a federal right to an abortion. Photo by Brandon Bell/Getty Images.

Maryland Attorney General Brian E. Frosh joined a coalition of 21 attorneys general in filing a brief in federal court on Tuesday, challenging Texas’ assertion that states shouldn’t have to comply with a federal law that protects doctors who end a pregnancy to save the patient’s life.

The brief argues the judge in the case shouldn’t grant Texas’ request for preliminary injunctive relief that would stop the federal government from enforcing the law, or a pre-judgment ruling, on the Emergency Medical Treatment and Labor Act.

“For decades, the federal government and courts throughout the country have interpreted EMTALA to require treatment for emergency conditions relating to pregnancy that do not involve active labor and have concluded that stabilizing treatment may include emergency abortion care when necessary to treat an emergency condition,” the attorneys general wrote in the 28-page brief.

The attorneys general also wrote that “emergency abortion care is necessary to avoid serious harmful outcomes (including death) in numerous situations such as when a patient presents with an ectopic pregnancy, severe preeclampsia, complications from abortion including self-induced abortion, and other medical conditions for which immediate medical attention is needed.”

In addition to Maryland and the District of Columbia, other states that signed on to the brief, filed in the U.S. District Court for the Northern District of Texas, were: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island and Washington.

The same coalition of attorneys general filed a second brief Tuesday in United States of America v. Idaho, supporting the federal government’s motion for a preliminary injunction to stop enforcement of Idaho’s near total ban on abortion.

In 2020, Idaho passed a “trigger” law which criminalizes all abortions and imposes prison time on anyone who performs, assists, or attempts to perform an abortion, even in the context of emergency care. The law outlines affirmative defenses for rape, incest and to save the patient’s life, which allows a person prosecuted for performing an abortion procedure to use those reasons as a defense.

“Texas’s and Idaho’s attempts to remove abortion care from emergency health services violate federal law and will put the health and safety of thousands of women at risk,” Frosh said in a statement. “We support the federal government’s efforts to ensure that emergency healthcare, including abortion, remains available women throughout our country.”

Texas challenge

The current debate between Texas and anti-abortion organizations, and the federal government began in July when U.S. Health and Human Services Secretary Xavier Becerra released a letter reasserting that under EMTALA “no matter where you live, women have the right to emergency care — including abortion care.”

Texas Attorney General Ken Paxton filed a lawsuit against the Biden administration a few days later, arguing that EMTALA doesn’t guarantee access to abortion. He said that because the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization the Constitution no longer holds the right to abortion that EMTALA is “an unconstitutional exercise of authority and must be held unlawful and set aside.”

The Texas lawsuit said that the HHS guidance would force health care providers “to choose between violating state law under threat of criminal penalty or jeopardizing their ability to participate in” federal health care programs like Medicare and Medicaid.

Paxton also wrote the federal law violates the 10th Amendment, which says that any powers not given to the federal government by the Constitution fall to the states and the people.

The brief filed by the 20 states and the District of Columbia on Tuesday urges the federal judge in the case not to grant Texas’ request for a preliminary injunction.

The attorneys general wrote that they have a substantial interest in the case because the states themselves are health care providers for millions of people as well as regulators of health care.

They argued that their states have a “strong interest in protecting the rights of their residents who may need emergency medical care while present as students, workers, or visitors in Texas and other States that may attempt to prohibit emergency abortion care contrary to EMTALA’s requirements.”

They also wrote that “if patients in Texas are denied necessary emergency abortion care, they may travel to nearby States (including amici New Mexico and Colorado) to receive the emergency care they need.”

“These States would thus experience additional pressures on their already overwhelmed hospital systems, especially in rural and underserved areas that would be most significantly affected,” they wrote.

Reports of postponed care

The states sought to highlight the wide-ranging impact that blocking EMTALA protections for abortion would have for patients who need a pregnancy ended to avoid severe health complications or death.

The brief noted that “doctors in Texas reported postponing care ‘until a patient’s health or pregnancy complication has deteriorated to the point that their life was in danger, including multiple cases where patients were sent home, only to return once they were in sepsis.’”

“As another example, a physician at an academic medical center described how a hospital asked her to accept a patient ‘who was already septic’ after the transferring hospital, on conscience-refusal grounds, refused to perform the abortion needed to save the patient’s life, instead transferring the patient in an unstable state because the fetus had cardiac activity,” the brief states. “The physician who treated the patient after the transfer reported the transferring hospital for violating EMTALA.”

The states wrote that if Texas, or other states with severe abortion restrictions, didn’t have to comply with EMTALA it would have a significant impact on health care providers in nearby states.

“Emergency rooms in New Mexico and Colorado and other neighboring states will inevitably need to absorb the out-of-state patient need for care that Texas’s law will cause, at a time when the states continue to wrestle with an ongoing global pandemic and new public health crises,” they wrote.

Maryland Matters Editor Danielle E. Gaines contributed to this report.