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As doctors navigate risks of criminal prosecution in states with abortion bans, hospital leaders and lawyers have left them to fend for themselves with minimal guidance and, at times, have remained “conspicuously and deliberately silent,” according to a 29-page report released Thursday by Senate Finance Committee Chair Ron Wyden. The poor direction is leading to delays in emergency care for patients facing pregnancy complications, the report concluded.
The Oregon Democrat launched a probe in September in response to ProPublica’s reporting on preventable maternal deaths in states with abortion bans. Wyden requested documentation from eight hospitals to see whether they were complying with a federal law that requires them to stabilize or transfer emergency patients; his committee has authority over the regulatory agency that enforces the law. The report also draws on roundtable discussions with doctors from states with abortion restrictions.
The resulting committee staff report provides a new layer of insight into the chaotic and dysfunctional hospital landscape in states with abortion bans, as well as a fresh opportunity for hospitals to consider reforms and provide proactive and transparent guidance to patients and doctors.
Physicians, whose accounts were anonymized, described hospital lawyers who “refused to meet” with them for months, were “pretty much impossible” to reach during “life or death” scenarios and offered little help beyond “regurgitating” the law, according to the report. Doctors described how other doctors gave out wrong and potentially harmful information, saying that patients could not legally choose their own course of treatment and that doctors could not legally treat ectopic pregnancies, potentially fatal complications in which an embryo develops outside the uterine cavity.
“Doctors are playing lawyer, and lawyers are playing doctor,” Wyden said in an interview. As a result, “women are getting hurt, they’re suffering, they can die, and we want to deliver this wake-up call so that they’re better protected and they understand what their rights are.”
The Biden administration has told hospital officials that they have a responsibility under the federal Emergency Medical Treatment and Labor Act, known as EMTALA, to stabilize any patients who show up to their emergency rooms, even if that means doing so with an abortion procedure that conflicts with state abortion law. If they can’t, according to the administration’s guidance, they must transfer the patient to a hospital that can. Some states have fought this. In Texas, a court ruled that the administration’s guidance can’t supersede the state abortion ban and the Supreme Court turned down an appeal.
Information on how to handle the legal conflicts between the bans and federal law is usually not written down at hospitals and, in some cases, is only provided on a “need-to-know” basis, the investigation found. Nurses not included on the same emails as doctors did not trust that they could treat patients, according to an Idaho physician, who added that doctors are left on their own to “figure out the second or third best option.” An emergency medicine doctor who once worked in Texas said they’d encountered OB-GYNs who were too afraid to help deliver care. Another said that colleagues “just want to get these patients out of the hospital” because they worried about the professional and personal risks of treating them.
The report described each of the five preventable deaths ProPublica reported as examples of the fatal consequences of abortion bans. It also added to the mounting accounts of patients in crisis being denied care. Physicians shared examples such as:
- A patient in Idaho whose placenta had “sheared off” the side of the uterus, leading to a massive hemorrhage; the bleeding patient was sent home from the emergency room four or five times. Only at the moment they were “going to bleed out” did the hospital believe they were legally allowed to stabilize the patient, the doctor said.
- Another Idaho patient who was 19 weeks pregnant and cramping and spotting but was sent home at the direction of maternal-fetal medicine specialists until she could “be brought into an emergency situation.”
- A patient whose water broke at 21 weeks and whose fetus wasn’t viable. Doctors refused to remove the fetus until the heartbeat stopped, first sending her home and then, upon her return, requiring her to wait over six hours before they agreed to induce labor. ProPublica wrote about a similar case in Texas in which a woman died of a fatal infection after being made to wait for 40 hours for the fetal heartbeat to stop.
Wyden was able to obtain documentation and answers from hospitals that are rarely provided to the public. In December, ProPublica requested miscarriage treatment protocols from the 50 hospitals in Texas that account for roughly half of the births in the state, according to state hospital discharge data. Almost all declined to provide them. Researchers who attempted a similar survey in Oklahoma last year were met with comparable resistance after they tried to get hospitals to share their policies for treating pregnancy complications under the state’s ban, according to a study by Physicians for Human Rights.
The senator requested documentation from eight hospitals across the country that had been the subject of reports of delayed or denied emergency care for pregnancy complications. He asked for their “policies, processes and procedures related to state abortion laws and emergency reproductive health care.” All eight responded, sharing hundreds of pages of documentation and answers, which the committee published along with the report. The documents provide a rare, detailed view into the operations of private medical systems that may give doctors and ethics committees at hospitals new insight into what others are doing to respond to the laws.
The response revealed that many of the hospitals were relying on guidance created before the existence of abortion bans, the report said. In most cases, physicians were given basic EMTALA guidance that didn’t discuss how to handle new abortion restrictions and were told to contact legal or ethics counsel for questions. Only a few hospitals had created proactive guidance to help their providers navigate the new landscape, and only two of those explicitly discussed conflicts that exist between abortion bans and EMTALA and how to handle them. It was not always clear if these directives were created before media reports of denied care.
Freeman Health System in Missouri was found by federal investigators to have violated EMTALA after doctors told a patient whose water broke nearly 18 weeks into her pregnancy that they could not induce labor because of the state’s new abortion law. It submitted robust protocols to the committee that include a flowchart of its intake for pregnant patients and informed consent paperwork advising patients of high-risk pregnancy complications that constitute an “emergency medical condition” under EMTALA. The Missouri hospital system was the only one out of the eight that said it offered full civil and criminal defense of any providers sued under state abortion laws, according to the report.
Also surveyed was the Georgia hospital system that treated Amber Thurman, a 28-year-old single mother who faced a deadly infection from a rare complication after taking abortion medication. Doctors at Piedmont Henry Hospital discussed, but did not provide, a procedure to clear her uterus in time, according to a report by the state maternal mortality review committee, which concluded that her death was preventable.
Piedmont told Wyden it had assembled a task force after the state’s abortion ban went into effect. The hospital said it gave providers educational material on conflicts the abortion ban could create, including a “decision tree,” a statement from the American College of Obstetricians and Gynecologists on navigating exceptions to abortion bans and guidance for complying with the law’s documentation requirements. (ProPublica reported in September that the task force provided education in the months after Thurman’s death.)
Piedmont, Freeman and five of the other hospitals mentioned in the report did not respond to requests for comment. Dr. R. Cliff Moore, the chief medical officer and maternal-fetal medicine physician for Woman’s Hospital in Louisiana, said that when an early pregnancy-loss diagnosis is unclear, physicians “wait for additional information as long as the patient is stable.”
“The policies, evaluation, treatment and care for early pregnancy loss at Woman’s Hospital have not changed,” he said.
To safeguard emergency reproductive care, the report called for abortion access to be reestablished across America and for the federal government to enforce EMTALA “to the fullest extent of the law.”
But with Republicans in control of all branches of government next session, Wyden recognizes this is an unlikely scenario.
“It is all the more important that hospitals and provider groups step up and do all that they can to make sure patients get the health care they need,” he said. “That means making it crystal clear that patients have a federal legal right to emergency care, no matter where they live, and shouldn’t have to be on the brink of death to get it.”
The report issued four recommendations:
- It called on hospitals and hospital associations to work together to provide training, guidance and resources to doctors to ensure they provide emergency pregnancy care in abortion ban states.
- It said professional medical organizations “should issue guidance and publish standards that clearly define appropriate clinical care in obstetric emergencies.”
- It encouraged hospitals to support the full spectrum of doctors, from OB-GYNs to family medicine physicians, in becoming certified to prescribe mifepristone, part of the two-pill abortion medication regimen.
- It said doctors should counsel patients about their rights under EMTALA and how to report violations.
Mariam Elba, Cassandra Jaramillo, Lizzie Presser and Ziva Branstetter contributed reporting.
