Post-Roe Medicine: Is There a Lawyer in the House?

In this episode, EMRA*Cast Host Kate Joyce, MD, MPH, explores the medicolegal questions that now plague emergency physicians caring for pregnant patients. How do you keep yourself and your patient safe from prosecution when providing reproductive health care?

Overview
In the wake of this year’s Supreme Court positions, treating OB/GYN emergencies according to standards of care can now result in criminal or civil charges for you and your patients in some states. Major medical societies have come out against the Dobbs v. Jackson decision that overturned Roe and Casey. While EMTALA currently provides some support for emergency physicians, state laws and local prosecutors still might try to take you to court. Understanding your state’s law and interpretation by your institution is crucial. On this episode host Kate Joyce (@sceneisnotsafe) talks with attorney Carmel Shachar (@CarmelShachar), policy analyst Cat Duffy (@catduffy), EM resident Jessica Adkins Murphy (@DrAdkinsMurphy), and OB/GYN resident Andrea Contreras about keeping your job and patients safe in today's legal and political landscape.

Take-Home Points (resources below)

• Read up. Know the laws and policies in your state using resources like the Guttmacher Institute interactive map and the Kaiser Family Foundation dashboard.
• Be smart. Depending on your state, physicians and potentially patients may be civilly or criminally liable. EMTALA may help your defense in court, but make sure to also protect yourself through careful charting and being mindful of your electronic breadcrumbs. No patient charts, text messages, or other communication are protected under HIPAA in court and may be discoverable. (https://www.americanprogress.org/article/using-hipaa-to-protect-patient-privacy-and-fight-abortion-criminalization/)
• Take initiative. Work with your program leadership and risk management on developing intra-disciplinary grand rounds - or at least a one-pager with institutional guidelines.
• Use your voice to combat misinformation, share your story and advocate for patients - AND DON’T FORGET TO VOTE. California, Kentucky, Montana, Vermont, and Michigan will all have ballot initiatives related to abortion in November 2022.
• Practice the standard of care. This will ensure appropriate treatment of your patient and serve as good defense should you be charged in civil or criminal court.

General Resources

• Guttmacher Institute. A wealth of information including an interactive map to learn what regulations are in your state.
• Kaiser Family Foundation Dashboard. State regulations as well as data surrounding financial and societal issues regarding abortion access. Includes a section on actions being taken on a state-by-state level.
• US Department of Health and Human Services. Guidance on reproductive rights.
• What happens when federal laws to provide emergency care clash with state abortion laws? The Commonwealth Fund.
• Dobbs: Immediate aftermath and coming Legal Morass. The Commonwealth Fund.

Finding your state's laws and policies

• Center for Reproductive Rights. Provides state by state comparisons, types of existing legislation and simple definitions for commonly used terms.
• Guttmacher Institute interactive map
• Kaiser Family Foundation Dashboard

EMTALA

• Mello M. Resuscitating Abortion Rights in Emergency Care. JAMA Health Forum. 2022;3(9).
• Centers for Medicare and Medicaid Services. Reinforcement of EMTALA obligations specific to patients who are pregnant or are experiencing pregnancy loss. Updated July 2022.
  • “...A physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents under EMTALA to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment.”
  • “...If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”
• White House. Executive Order on securing access to reproductive and other healthcare services. August 2022.
• American College of Emergency Physicians. EMTALA Fact Sheet. Undated.
• Hagland M. Texas Federal Judge Blocks HHS EMTALA guidance on Emergency Abortions. Healthcare Innovation. August 2022.
• Vestal C. Some Abortion Bans put patients, doctors at risk in emergencies. Pew Trusts Stateline. September 2022.
  • “...Federal courts in Idaho and Texas are wrestling with the thorny question of whether state abortion bans or a federal emergency medicine statute should determine whether and when doctors can perform emergency abortions. Last week, they came up with opposite answers. A Texas judge ruled that state abortion laws preempt a federal law requiring hospitals and physicians to protect the health and life of all patients who enter an emergency room or labor and delivery department.”

Privacy protection & HIPAA

• Using HIPAA to protect patient privacy and fight abortion criminalization. Center for American Progress.
• Samuelson K. In a post-roe era, it’s about supporting, not reporting. Northwestern University. Sept 2022.
• Shachar C. HIPAA, Privacy, and Reproductive Rights in a Post-Roe Era. JAMA. 2022;328(5):417-418.

Voting & Advocacy

• Register to vote.
• Ballotpedia: Abortion-related ballot measures.
• Finding your state and federal senators and representatives: https://openstates.org/find_your_legislator/
• EMRA Emergency Medicine Advocacy Handbook. Chapter 31 - Legislative Advocacy. https://www.emra.org/books/advocacy-handbook/legislative-advocacy/
  • Identify your specific passion and why you choose to advocate.
  • Advocacy through leadership is central; focus on coalition-building.
  • Utilize all available contact options when advocating for your position.
  • Write letters to the editor and op-eds that utilize personal stories and data to advocate for your issues.
  • Develop relationships with your legislative offices by creating lines of communication, while employing trusted information and reliable opinions.

Prosecution of patients

• Some States are ready to punish abortion in a Post-Roe World. Center for American Progress.
• Paltrow LM, Flavin J. Arrests of and forced interventions on pregnant women in the United States, 1973–2005: Implications for women's legal status and public health. Journal of Health Politics, Policy and Law 2013;38(2):299-343.
• Texts, web searches about abortion have been used to prosecute women. Washington Post. July 2022.

Patient Resources

• Repro Legal Helpline: Free, confidential helpline for legal information or advice regarding self-managed abortion; 844-868-2812 & https://www.ifwhenhow.org for legal assistance
• Medication abortion access: Plan C Pills and Women Help Women
• Hotline (1-833-246-2632) with clinicians who volunteer to answer patient or provider questions about miscarriage or abortion including symptoms/management at home. People can call or text https://www.mahotline.org
• Abortion service finders: https://www.ineedana.com/ and https://www.abortionfinder.org
• Information regarding all options
• Financial Assistance.

Case Law

• Dobbs, State Health Officer of the Mississippi Dept of Health v Jackson Women’s Health Organization. June 2022.
• Planned Parenthood of Southeastern Pennsylvania v Casey. April 1992.
• Roe v Wade, District Attorney of Dallas County. 1973.
• Griswold v Connecticut. 1965. ​​
• Hyde Amendment

From EM organizations

• The Emergency Department after the fall of Roe: Are you prepared?
• Twisted: Women's Reproductive Health in the Emergency Department. EM Resident. 2022;49(3).
• Adkins Murphy J. Editor's Forum: Miscarriage of Justice. EM Resident. 2022;49(3):1.
• The implications for EPs of Abortion Laws and the Criminalization of Pregnancy Loss. Emergency Medicine News. I July 2022.

National Medical Organization Statements

• Emergency Medicine Residents' Association
• American College of Emergency Physicians
• Society of Academic Emergency Medicine-RAMS
• SAEM & AWAEM
• American Academy of Emergency Medicine
• American Hospital Association
• American Medical Association
• American Board of Obstetrics and Gynecology
• American College of Obstetrics and Gynecology
• American Association of Medical Colleges