The Last Mile of Abortion Law
When hospitals refuse to interpret abortion bans and stonewall doctors
I really enjoyed seeing Wake Up Dead Man, the new Knives Out murder mystery in a real movie theater, and now it’s streaming on Netflix. At Word on Fire, I have a not-too-spoilery recommendation: “Johnson turns out to be interested in a deeper mystery than “whodunnit” or “howdunnit.” Even if a murderer is caught, what, if anything can be set right? Blanc can speak for the dead, but he cannot raise them and restore them.”
I’ve been pitching various outlets on a piece I was calling “The Last Mile of Abortion Law” since shortly after Dobbs. I wanted to know how various hospitals were translating state bans into guidelines for practice in cases of emergency. Who decided where to draw the line, and how much was was spelled out explicitly versus devolved onto the individual doctor’s judgement?
The trouble is, I couldn’t get hospitals to talk to me on the record.
In the new issue of The New Atlantis, I’ve finally gotten to write a version of that piece:
“Who Decides on Emergency Abortions After Roe?”
I’m indebted to pro-choice Senator Ron Wyden, who got me (and everyone else) some of the answers we needed by subpoenaing hospitals and conducting roundtables of OB-GYNs. As I explain, drawing on his data and some sources of my own, some hospitals are choosing not to interpret the law, to the detriment of doctors and patients.
Here’s an excerpt:
A recurring theme in Wyden’s report, titled “Practicing Amid ‘a Minefield,’” is that many hospitals had not updated their guidance on how to comply with EMTALA since the Dobbs decision in 2022 and the new state-level abortion restrictions that followed. Some hospitals told doctors to direct their questions to the hospital legal team but didn’t actually provide guidance when asked.
The doctors convened in Wyden’s roundtables expressed open frustration with their hospital systems. One Tennessee obstetrician said that, at their hospital, “when all of this became very confusing, they just disbanded the [hospital] committee” that had been tasked with analyzing the abortion ban and refused to provide guidance to doctors. An ER doctor in Texas faulted their hospital for being reactive in guidance, not proactive. The hospital only offered “education about EMTALA when the hospital … was cited for an EMTALA violation.”
One Louisiana obstetrician said their hospital shared protocols on a “need to know basis,” creating confusion about what the protocols were and putting patients at risk of getting misinformed by physicians who hadn’t been specifically briefed. An Idaho provider had experienced similar problems where nurses were left out of the loop, and as a result “nurses have been anxious to work with physicians when physicians tell them it is okay to treat a patient. This disrupts care.” A Texas obstetrician expressed blunt frustration with other doctors who interpreted the law on their own: “doctors [are] telling patients they can’t treat an ectopic pregnancy, which is not true.”
When hospitals refuse to interpret the law by offering clear protocols, doctors rely on legal consults, which may not be timely. The emergency room is always open, but the hospital’s lawyers may not be pageable round the clock. Multiple doctors told Wyden’s roundtable that they had been ghosted by their hospital’s legal team when they sought guidance. A doctor from Missouri said that the legal team’s responsiveness to questions about abortion was lacking compared to other inquiries. An obstetrician in Idaho reported being stonewalled for two months when requesting a meeting.
If you’re wondering what kind of guidance states are providing, I think it’s worth checking out this video guidance South Dakota produced, at the direction of the state legislature:
For people with good faith concerns about abortion bans offer adequate room for intervention in case of emergency, I’d be very curious whether that video hits the mark, or what you think it lacks.
Pro-choice groups have never identified a law they think offers adequate protections, nor identified model language that would be sufficient. In some cases, major abortion groups have a policy against endorsing any improvement in a law that does not return to the protections of Roe. Some abortion access advocates state explicitly that advocating for clearer life of the mother exemptions undermines the movement as a whole—since it “creates a false hierarchy of who is deserving” of an abortion.
At least one pro-choice MFM has spoken out publicly about her frustration that her allies won’t join her in improving or clarifying the laws they hope they can one day repeal. I think there are plenty of pro-choicers who disagree profoundly with me on bans, but also want exemptions to exist in ban states and to be interpreted clearly and fairly by hospital systems.
I'm curious to know much more about *why* hospitals are refusing to clarify their policies.
I'm quite convinced it has nothing to do with any pro-choice advocacy for overturning these messy laws altogether.
I'm quite convinced it has almost everything to do with how accountants carry liability on the books. Because these post Dobbs laws carry *criminal* liability (more here: https://www.kff.org/womens-health-policy/criminal-penalties-for-physicians-in-state-abortion-bans/) and this liability is carried solely by physicians by default in most states, unless a hospital network puts forward a policy they don't need to carry that liability on their books. And because it's *criminal* liability if they *do* want to create policies and take on some of that liability, they can't easily carry an insurance policy that lets them mitigate the risk & potential cost.
Bonus: many of these hospitals are part of for profit networks / owned by private equity. That means that *legally* they must protect their shareholders interest. Taking on unnecessary potential financial burdens is almost certainly something these corporate legal teams oppose on the grounds of running contrary to shareholder interest, opening up additional legal liability.
Medical providers would need to start with an actual, concrete, consistent definition of "high-risk pregnancy" or "high-risk delivery" before being able to define "emergency." Risk of what, precisely, spelled out, and high compared to what? If the medical community can't agree on basic terms and classifications for obstetric care, how can they be expected to determine what is an emergency in the first place and what is not, let alone determine what counts as an emergency under time pressure?