How to Treat Pregnant Patients in a post-Roe v. Wade Reality

Some strategies to avoid potentially sticky legal entanglements in providing care

The following article is not legal advice. Only a licensed attorney in the state you practice can give you legal advice. The article is for educational purposes and to help with medical management of patients.

Intro: One hour into your shift, with an understaffed department, a packed waiting room and three quarters of your ED beds boarding, the charge nurse calls, “Doctor, a 22-year-old female with syncope is going into room 13, BP is 88/40. She doesn’t look good!”

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You quickly get up and examine the patient, who is alert, oriented, diaphoretic, and pale. She denies any medical history. She missed her menses last month, and started having abdominal cramping earlier in the day. Right before she passed out, she had onset of severe lower abdominal pain, which is persisting now. She is tender in the lower abdomen and has some guarding. Her urine pregnancy test is positive and a point of care ultrasound reveals an empty uterus and free fluid around the bladder and uterus. After an IV bolus, her blood pressure improves to 102/60. Her beta-HCG is 1200 IU/l and a formal bedside ultrasound reveals a ruptured ectopic pregnancy at the left adnexa with a fetal heart rate of 140.

You are about to call OB/Gyn and then remember that Roe v. Wade was recently overturned. Your state has enacted new restrictions banning abortion after six weeks gestation with no exceptions provided. The restrictions also criminalize persons for “aiding and abetting” someone seeking an abortion. You are worried about the potential legal ramifications.

What do you do?

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This summer, the Supreme Court of the United States (SCOTUS) ended the constitutional right to abortion when it overturned Roe v. Wade. In the case, Dobbs v. Jackson Women’s Health Organization, a 15-week abortion ban was used to test the Constitutional right to abortion. As a result of the Dobbs decision, the right to abortion is now left up to States resulting in a drastically different legal landscape in which abortion access differs drastically depending on one’s geographic location Healthcare providers must understand the Dobbs decision and its effect on state laws, the implication for emergency medicine, and ultimately how to manage patients with pregnancy and pregnancy loss where abortion may be a treatment option.

Post Dobbs Treatment Considerations

After the Dobbs decision, there are several considerations a medical provider should keep in mind when providing care to pregnant patients.” These considerations include federal laws like the Emergency Medical Treatment and Labor Act (EMTALA), state laws, and hospital policies. Along with an understanding of the role of EMTALA, a provider must understand the current abortion laws in the state they are practicing. Keeping these two concepts in mind should help direct a provider in their care.

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Understand State Restrictions

Since Dobbs allowed each state to craft its own laws regarding abortion, it is important to know any restrictions in the states where emergency medicine providers are practicing. Below is an example of a state restriction on abortion:

1. (a)  A person may not knowingly perform, induce, or attempt an abortion.
2. (b)  The prohibition under Subsection (a) does not apply if:

(1) the person performing, inducing, or attempting the abortion is a licensed physician;

(2) in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced; and

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(3) the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create:

(A) a greater risk of the pregnant female’s death; or

(B) a serious risk of substantial impairment of a major bodily function of the pregnant female.

3. (c)  A physician may not take an action authorized under Subsection (b) if, at the time the abortion was performed, induced, or attempted, the person knew the risk of death or a substantial impairment of a major bodily function described by Subsection (b)(2) arose from a claim or diagnosis that the female would engage in conduct that might result in the female’s death or in substantial impairment of a major bodily function.

(d) Medical treatment provided to the pregnant female by a licensed physician that results in the accidental or unintentional injury or death of the unborn child does not constitute a violation of this section.

State of X. Health and Safety Codes XXX.XX

(Actual citation left out intentionally to avoid political suggestions)⁴

A provider practicing in this state would identify that the law bans abortion from the time of conception. They would then need to recognize that there is an exception for an abortion if a life-threatening physical condition is present to the pregnant female. The provider needs to then show they gave the best opportunity for the unborn fetus to survive, unless it would pose a greater risk to the pregnant female.

Providers need to become familiar with their state laws around abortion. In doing so, the provider will be able to identify if their patient falls within the state’s restrictions and if there are any exceptions that are present to allow for an abortion as a therapeutic option.

The Supremacy Clause and EMTALA

The Supremacy Clause of the United States Constitution, states that “This Constitution, and the laws of the United States…shall be the supreme law of the land.”(U.S. Const. art. VI.C2.1.1.3). Any federal law with the intent to preempt state laws would supersede a state law that is contrary to the federal law. The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law and specifies its “provisions do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section. 42 USC 1395 dd(f)”. State laws can create duties that overlap or add to EMTALA. These state statutes will be enforced unless it is contrary to one of the requirements in EMTALA.

President Biden recently reinforced the importance of EMTALA in guiding emergency medicine in executive order 14079 which states “HHS will take steps to ensure all patients – including pregnant women and those experiencing pregnancy loss – have access to the full rights and protections for emergency medical care afforded under the law…” (Exec. Order No. 14079, 87 FR 49505, 2022).

Requirements Under EMTALA

EMTALA requires covered hospitals to  provide a medical screening exam reasonably calculated to identify any emergency medical conditions in a patient seeking emergency medical care. 42 USC 1395dd(a).

Does an Emergency Medical Condition Exist Under EMTALA?

EMTALA applies when a patient presents with an emergency medical condition defined as:

A medical condition manifesting itself with acute symptoms of sufficient severity (including pain) such that in the absence of immediate medical attention could reasonably be expected to result in placing the individual (or with respect to a pregnant woman, the health of her unborn child) in serious jeopardy, serious impairment to bodily functions or serious dysfunction to any bodily organ or part 42 USC 1395 dd( e (1)).

For a pregnant woman experiencing contractions, there is inadequate time to effect a safe transfer to another hospital before delivery or that transfer may pose a threat to the health and safety of the woman or unborn child. 42 USC 1395 dd(e(B)).

EMTALA treats pregnant women differently in its definition of an emergency medical condition. The definition provides a woman experiencing contractions as having an emergency medical condition and the facility must arrange for a safe transfer unless the transfer would jeopardize the mother or unborn child. Morin v. Me.Med.Ctr., 780 F. Supp.2d 84, 94.  EMTALA’s definitions do not separate the difference as to whether the fetus is viable or not. Morin v. Me.Med.Ctr., 780 F. Supp.2d 84, 94.

Does EMTALA Apply to the Patient’s Condition?

The emergency medicine provider must ask, “does an emergency medical condition exist?” If the answer is no, there is no duty under EMTALA to provide any further care or potential guidance that may be counter to the state’s restrictions on abortion. If the answer is yes, then the provider has a duty to stabilize the pregnant patient and those suffering from pregnancy loss.

Providers need to determine if there are acute symptoms that without immediate medical attention could put the pregnant woman or unborn child in serious jeopardy, serious impairment to bodily functions, or serious dysfunction to any organs.42 USC 1395dd(e(1)). Contractions in a pregnant woman arise to the level of an emergency medical condition by statutory definition. As such, they require transfer or stabilization. When present, these symptoms should prompt a provider an emergency medical condition exists.

Stabilization Under EMTALA

When an emergency medical condition exists, the hospital has the duty to “stabilize the condition.” “Stabilize” means,

….to provide 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 to deliver (including the placenta) 42 USC 1395 dd(e(3)).

In determining the best treatment for stabilization, the provider must consider which treatment will assure with reasonable medical probability that the condition will not deteriorate. A fluid bolus may temporize a condition such as a ruptured ectopic, but unless definitive treatment is rendered it is within reasonable probability that the condition will continue to deteriorate. The provider will may need to consider the unborn fetus’ wellbeing in the treatment decision based on the state law, but that may not preclude an abortion from being the appropriate treatment to stabilize the mother’s condition.

Cases Examples

Ruptured Ectopic Pregnancy

In the introductory case, a patient with a ruptured ectopic pregnancy and hypotension would undoubtedly be considered to have an emergency medical condition under EMTALA. The patient would present with acute onset of severe pain, which alone qualifies as an emergency medical condition. In addition, the patient is hypotensive. While fluids would be a temporizing measure, it is likely that the patient’s condition will deteriorate with “reasonable medical probability”.  Stabilization would require surgical intervention.

The American College of Obstetrics and Gynecologist (ACOG) recommends, as level A evidence, that any hemodynamic instability, symptoms of ongoing ruptured mass, or signs of intraperitoneal bleeding, be managed surgically.¹ Any state laws against providing an abortion would be held invalid under the Supremacy Clause until the patient is considered stabilized under EMTALA.  The provider may need to document, as in the example law given above, the condition of the fetus was considered in the situation, but the ongoing risk to the mother’s life and “substantial bodily dysfunction” would have incurred without the procedure.

Non-Ruptured Ectopic Pregnancy

A patient with a non-ruptured ectopic presents a difficult treatment decision. Depending upon the size of the ectopic pregnancy, some could argue that the patient is stable as defined under EMTALA. The determination of whether an emergency medical condition exist could be based on the patients acute presenting symptoms.  One could question, if the ectopic has not ruptured, whether the condition will deteriorate with “reasonable medical probability” if not treated. In this case it may just be a matter of when the ectopic will rupture.   Determining whether the emergency medical condition has been stabilized can be difficult in the non-ruptured ectopic. Things to consider in determining the stability will be the size of the ectopic, the B-HCG level, and the hemodynamic stability of the patient.

Studies show that the size of the ectopic <2cm is unlikely to rupture.² A B-HCG 1855 I/Ul of higher is more likely associated with rupture.[^2]   ACOG clinical guidance states, the decision of surgical verse medical management of an ectopic pregnancy should be guided by the initial clinical, laboratory, and radiologic data, as well as an patient choice based on an informed discussion.[^1] According to the Royal College of Obstetricians and Gynecologist, “Systemic methotrexate may be offered in suitable women with a tubal ectopic pregnancy. It should never be given at the first visit unless the diagnosis of ectopic pregnancy is absolutely clear and a viable intrauterine pregnancy has been excluded.”[^3] It may be prudent for an ectopic pregnancy with lower risk of rupture to be referred to gynecology with close follow up, and the gynecologist can determine based on the state’s restrictions if methotrexate or salpingectomy may be appropriate treatments within the confines of EMTALA and the state laws.

In the introductory case, the state law had a clause around “aiding and abetting” for which a person could be found guilty. There is no case law around “aiding and abetting” for abortion so it is hard to understand how this may interpreted. Aiding has been defined as “knowing that the person you are assisting is about to commit a crime.” Abetting has been defined as supporting or encouraging, and has used terms such as advise, encourage, induce, or counsel.” Is the emergency medicine provider aiding when they refer a stable patient to an obstetrician? If the patient is unstable does that change? It seems in terms of abetting; we perform a lot of advising and counseling of our patients on a daily basis. Does advising a patient to follow up with an obstetrician who may be performing abortions in a restrictive state abetting? The cases have not come forth yet and giving guidance is very difficult.

Inevitable Abortion

A 30-year-old female with 14-week gestation presents with heavy vaginal bleeding. A bedside exam revealed an open cervix with heavy bleeding, and the formal ultrasound findings consistent with an inevitable abortion. However, the fetus has a heart rate of 100. The state’s current law on abortion bans abortion on any viable fetus after 12 weeks with exceptions only for an ectopic pregnancy or severe fetal congenital abnormalities.

Using the state law and EMTALA to guide our decision, we would start by identifying whether the patient falls under the restrictions of the state law. Under this example’s state law, the patient is beyond the gestational age limit and does not meet any obvious exceptions for pregnancy termination. Initial treatment again would depend on the duties under EMTALA. The provider would need to determine if an emergency medical condition exist and if so, what needs to be done to stabilize the condition. Acute heavy bleeding during pregnancy would suggest an emergency medical condition exist. Next consider the stability of the patient. A determination that the patient is unstable, due to hemodynamic instability or ongoing heavy bleeding, would require that stabilizing treatment be instituted. Such treatment may involve IV fluid, blood transfusion, Rhogam. Despite these treatments, the patient may not be stable as “reasonable medical probability” would suggest the condition is likely to continue to deteriorate without definitive treatment such as an abortion. Given the instability of the patient, an obstetrical consultation should be considered.

If the obstetrician recommends misoprostol and or mifepristone to promote the passage of the products of conception, the emergency physician will need to determine whether the patient is considered “stable” under EMTALA. If the patient is considered to continue to have an emergency medical condition that is not stabilized within “reasonable medical probability”, and the misoprostol and mifepristone is a treatment to help stabilize the patient, it should be considered. Noting physical, laboratory, and radiologic findings demonstrating how the patient is unstable will help show that such decisions were appropriate.

Threatened Abortion

A 26-year-old female presents with lower abdominal pain she reports as 1/10, and spotting. She reports being 8 weeks pregnant. An abdominal exam reveals no tenderness, guarding or rebound. A pelvic exam reveals a closed os with trace blood on speculum exam and no tenderness. Her B-HCG is 3500 I/Ul. A formal ultrasound reveals a IUP with a fetal heart rate at 130 bpm and measurements suggest the fetus is 8 weeks and 2 days. The patient discloses to you she does not want the pregnancy.

The state law in this example, provides for a ban on abortion after 6 weeks gestation, unless there is an ectopic pregnancy, or severe congenital fetal abnormalities. The law does not state any information as to “aiding or abetting.”

If the patient did not have symptoms that suggest an emergency condition, such as heavy bleeding or pain, the patient’s history, physical laboratory, and radiologic findings might suggest no emergency medical condition exist. If an emergency medical condition does exist, the information may suggest that that with in “medical reasonable probability” the patient is stable. In this situation the provider may want refer the patient to obstetrics with close follow up. The provider should educate the patient on specific symptoms and findings that should prompt the patient to return immediately “without fail” to the emergency department.

The patient suggested she does not want to proceed with the pregnancy. The patient falls under the restriction for abortion in the state, and no exceptions are identified. Without an emergency medical condition that requires stabilization, there is no reason for the provider to obligated to prescribe or perform any therapeutic procedure which would terminate the pregnancy. The provider should counsel this patient and refer this patient to their obstetrician. The provider may be able to counsel the patient in this scenario as well at their discretion.

Emergency physicians, obstetricians, and hospital administrators are encouraged to develop policies in conjunction with legal counsel for addressing various multiple patient presentations that may trigger state law restrictions including:

•                 Threatened abortion
•                 Inevitable abortion
•                 Ectopic pregnancy both ruptured and non-ruptured
•                 Preterm premature rupture of membranes <24 weeks gestation
•                 Peri-mortem C-section
•                 Counseling patients on pregnancy options including abortion in a state with “aiding and abetting” restrictions

Conclusion

While there is still uncertainty surrounding how states will proceed in their enforcement of new restrictive abortion laws, emergency medicine providers can take a step wise approach to treating patients with pregnancy and loss of pregnancy in the emergency department. This approach which includes:

1. Knowing specific state law restrictions regarding abortions
2.   Does gestational age apply? If so, what is the patient’s gestational age?
3. Are there any exceptions that apply to the care of your patient?
4. Does the patient have an emergency medical condition as defined by EMTALA?
5. If EMC found, provide stabilizing treatment. In general, strongly consider admitting or transferring pregnant patients with an EMC – even if temporarily stabilized. Consider including physical/laboratory findings in the medical record to bolster a decision that the patient does have an EMC.
6. If no EMC found, patients may be referred to their obstetrician or the on-call obstetrician for close outpatient follow up.

If a question arises regarding the legality of providing treatment to a pregnant patient, involve hospital administration and hospital legal counsel and document such discussions in the patient’s medical record.

Bibliography:

1. Barnhart, Kurt T, MD. Franasiak, Jason M, MD, TS. ACOG Practice Bulletin: Clinical Management Guidelines for Obstetricians- Gynecologist. Tubal Ectopic Pregnancy. The American College of Obstetrics and Gynecologist. Vol 131. No. 3, e91-e103. March 2018.
2. Karadeniz, RS., et.al. Tubal Rupture in Ectopic Pregnancy: Is it predictable? Minerva Ginecol. 2015 Feb; 67(1): 13-19.
3. Elson, CJ., et.al. Diagnosis and Management of Ectopic Pregnancy: Green Top Guideline No. 21. BJOG. Dec 2016. Vol. 123 Is. 13. 2059-2060, e15-e55, 2063-2223, e1-e14.
4. States statute used in example comes from: Tex. Health and Safety Code s170A.002 (2021).