EDs Are Getting Clarity on State Abortion Laws
By Stacey Kusterbeck
Media coverage — and misinformation — abounded in the aftermath of the June 2022 Dobbs v. Jackson Supreme Court decision that allowed each state to enact its own laws regarding abortion. “As a result, hospitals were creating initiatives that made it very confusing, especially for emergency physicians [EPs],” reports Glenn Goodwin, DO, clinical faculty and emergency medical service liaison at Aventura Hospital and Medical Center.
Previously, EPs caring for a patient with an ectopic pregnancy typically kept the patient stable, made a quick call to OB, and discussed whether the EP should prescribe methotrexate in the ED. Many such patients could safely be discharged home from the ED with outpatient follow-up in place. However, after the Dobbs decision, those clinical practices changed in some EDs in states with abortion bans. The changes did not come about directly because of state laws, per se, but more so over uncertainty about how the laws could be interpreted. Some hospitals instructed EPs that they were not allowed to prescribe methotrexate in the ED for ectopic pregnancies or administrators stated that, in addition to calling OB, EPs also should involve the hospital’s legal team. Those extra steps resulted in delays in care and higher rates of transfer. ED providers worried about the legal ramifications of the practice changes. “If you have to jump through all of those hoops to make a decision, and it takes additional time to administer definitive treatment, that could have a devastating effect on patient outcomes,” says Goodwin.
ED providers also were concerned that some OB/GYNs might stop practicing in states with restrictive abortion laws.1,2 “This is exacerbating an already taxed system. OBs are leaving states that are the most restricted and legally obscure, which happen to be the same states that have the most pregnancy-related complications. This is even having future ramifications, as there has been a decline in medical students applying to some OB/GYN residencies in those restrictive states,” notes Goodwin.3,4 The worry is that these developments mean people are receiving less prenatal care and experiencing more complications during pregnancy. For EDs, that would mean more patients presenting with obstetrical emergencies.
Fewer OBs in states with abortion bans also could mean EPs will face extra challenges obtaining OB consultations. For cases where there is an emergent need for OB consultation, says Goodwin, “as emergency physicians, we have to know our scope, stay in our lane, and get OB involved early in making an optimal, collective decision. That’s what consultations are there for,” says Goodwin.
Goodwin has never seen a situation where an EP was unable to contact an OB. However, if patients need to be transferred, less OB availability can result in potentially dangerous delays. “If a transfer is needed, and there was an OB 50 miles away who has since left, so now the transfer is 100 miles away, that transfer just became more complicated. The clinician must consider the survivability and medical management of these prolonged transfers,” says Goodwin.
Some ED providers worry about being prosecuted for treating ectopic pregnancies.5 Goodwin and colleagues decided to analyze the language in state abortion laws to hopefully clear up misconceptions.6 “We wanted to figure out what the laws actually state, and try to put forth best practice recommendations to avoid a negative effect on the patient,” says Goodwin. The researchers found that state laws explicitly affirm that providers need to prioritize the life of the pregnant patient. “I have not heard of a physician being punished for trying to save a life, despite what has been reported in the media. Once someone really looks into it, there’s a crucial detail of the case that the media leaves out or something is exaggerated. This trend may change, but this is what I have found to be true up until this point in time,” says Goodwin.
The researchers also assessed trends in pregnancy-related ED visits from 2016 to 2020, using data from the National Hospital Ambulatory Medical Care Survey. Some key findings:
- About 18% of patients presenting to EDs with a pathologic pregnancy required hospitalization. About half of those visits, and ED visits for bleeding in pregnancy, had a procedure in the ED.
- In about one in seven visits for ectopic or molar pregnancy, methotrexate was administered in the ED.
- Most (70%) of ED visits for complications following an induced abortion occurred in the South and were almost twice as likely to occur in non-metropolitan areas.
Uncertainty over the interpretation of the laws is sometimes leading to over-compliance, the authors asserted. Relying on the media as a source for information is not ideal, says Goodwin. Instead, ED providers can review their state laws, or consult with their hospital’s legal department. The authors also recommended that ED providers practice in compliance with the Emergency Medical Treatment and Labor Act (EMTALA). “Our assessment of legal texts and research seems to indicate that if there’s a state law that contradicts EMTALA and you follow EMTALA, you will be protected, as EMTALA is a federal law and generally takes precedence over state laws,” offers Goodwin.
One of the key drivers for passage of EMTALA more than 30 years ago was for the purpose of protecting pregnant patients in active labor, underscores Mary C. Malone, JD, a partner at Hancock Daniel in Richmond, VA. Therefore, it is important to demonstrate EMTALA compliance with respect to OB patients by showing that a medical screening examination was performed by a physician or qualified medical personnel acting within the scope of their practice.
If the medical screening examination shows that the patient is having contractions and is in active labor, but there is inadequate time to safely transfer the patient to another hospital before delivery, or if transfer of the patient may pose a threat to the health or safety of the patient or unborn child, then that OB patient has an emergency medical condition that will require stabilizing treatment, says Malone. That could entail cessation of active labor or delivery of the unborn child and placenta. Malone says that, for OB patients, these items should be well-documented in the ED chart:
- the medical screening examination;
- the result — either there was, or was not, an emergency medical condition;
- the subsequent treatment and care planning for the patient;
- consideration of the risks and benefits of transferring the patient to another facility.
A patient transfer may be necessary where there is a lack of capacity or capability to provide the required treatment. “The emergency physician should document the thought process regarding transfer and should only arrange a transfer where the benefits outweigh the risks,” says Malone.
All other requirements for EMTALA transfers also must be followed and documented. These include identification of an appropriate, willing receiving hospital; arrangements for appropriate transportation; and ensuring that necessary medical personnel and equipment to safely transport of the OB patient will be provided. “Information regarding the patient’s vital signs and progression of labor should be monitored and recorded until the patient leaves for transfer,” notes Malone. “In certain high-risk cases, fetal monitoring during transport may be required.”
- El-Bawab N. Doctors face tough decision to leave states with abortion bans. ABC News. Jun. 23, 2023. https://abcn.ws/40AwXqI
- Diamante R. Texas abortion laws have gynecologists thinking about leaving. Spectrum News NY1. Mar. 27, 2023. https://ny1.com/nyc/all-boroug...
- Traub A, Aaron B, Kawwass J, et al. The Dobbs decision and its geographical effect on future physician training. Obstet Gynecol 2023;141:100S.
- Woodcock AL, Carter G, Baayd J, et al. Effects of the Dobbs v. Jackson Women’s Health Organization decision on obstetrics and gynecology graduating residents’ practice plans. Obstet Gynecol 2023;142:1105-1111.
- Goldhill O. ‘A scary time’: Fear of prosecution forces doctors to choose between protecting themselves or their patients. STAT. July 5, 2022. https://www.statnews.com/2022/07/05/a-scary-time-fear-of-prosecution-forces-doctors-to-choose-between-protecting-themselves-or-their-patients/
- Goodwin G, Marra E, Ramdin C, et al. A national analysis of ED presentations for early pregnancy and complications: Implications for post-Roe America. Am J Emerg Med 2023;70:90-95.
After the Dobbs decision, clinical practices changed in some EDs in states with abortion bans. The changes did not come about directly because of state laws, per se, but more so over uncertainty about how the laws could be interpreted.
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