The Heartbeat Act is new, and there are no South Carolina judicial opinions or agency regulations to guide providers on the application of the Heartbeat Act in the myriad of complex clinical situations they face. For example, questions remain regarding the legislature’s intent in creating an exception to the prohibition on abortion in the event of “the serious risk of a substantial and irreversible impairment of a major bodily function of the pregnant woman.” What constitutes a “serious risk,” a “substantial and irreversible impairment,” or a “bodily function”? These questions are likely to be answered in the coming years—not weeks or even months. In the meantime, South Carolina health care providers will have to wrestle with the uncertainty and the risk associated with performing abortions. Many may choose to abstain altogether. However, as discussed below, refusal to perform a “medically necessary” abortion or an abortion needed to prevent the deterioration of the condition of the patient presenting in the emergency department creates an entirely different set of concerns.
What about EMTALA?
On July 11, 2022, the Centers for Medicare and Medicaid Services (CMS) issued a memorandum to state agencies responsible for the enforcement of the Emergency Medical Treatment and Labor Act (EMTALA) outlining its stance on the interplay between laws like the Heartbeat Act and EMTALA. CMS’s message is clear: the obligations of EMTALA preempt state laws like the Heartbeat Act. Furthermore, CMS appears to be signaling to its enforcement agencies that violations of EMTALA in the name of state laws such as the Heartbeat Act should be investigated. CMS’s position can be found here.
Under EMTALA an emergency department must provide a medical screening to any individual who comes to the emergency department and requests an examination, and prohibits hospitals with emergency departments from refusing to examine or treat individuals with emergency medical conditions. The emergency department/physician must stabilize a patient before transfer or discharge. EMTALA defines “stabilize” as providing “such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to [a pregnant woman having contractions], to deliver (including the placenta).”
CMS has made clear that if a state law, like the Heartbeat Act, conflicts with an emergency department and physician’s obligation to stabilize a patient—i.e., prevent material deterioration—then EMTALA preempts state law. Below is an example to illustrate the potential conflict:
A patient presents to the emergency department at 10 weeks pregnant. A fetal heartbeat is detected, but there is a reasonable medical probability that discharging the pregnant patient without performing the abortion would result in the patient’s material deterioration (the EMTALA standard). However, there is concern that an abortion is not necessary to avoid a serious risk of a substantial and irreversible impairment of a major bodily function to the patient (the Heartbeat Act standard). What should the physician and facility do?
CMS’s position is that because EMTALA preempts state law—i.e. the Heartbeat Act—the physician and facility should provide care in accordance with the standard under EMTALA, and they must provide stabilizing treatment to avoid the patient’s material deterioration. CMS’s position is that this is the case, even if there is an argument that the patient’s condition does not meet the standard under the Heartbeat Act.
Failure of the emergency department and physician to comply with EMTALA (even if the requirements appear contrary to the Heartbeat Act) could result in significant financial penalties to both the facility and physician and could even result in exclusion from the Medicare Program.
However, where the requirements of EMTALA and the Heartbeat Act do not conflict (e.g., any reporting requirements or the requirement to perform ultrasounds and make fetal heartbeats audible prior to performing an abortion), then South Carolina emergency departments and physicians should comply with those requirements. Providers should also keep in mind that in settings outside of an emergency department, the Heartbeat Act applies, and providers will need to review the requirements closely to ensure compliance.
Notably, on July 14, 2022, the State of Texas filed suit against the United Stated Department of Health and Human Services, arguing against the Biden Administration’s interpretation of the EMTALA in the context of potentially conflicting state law. How the courts will respond to this action remains to be seen. A copy of the lawsuit may be found here.