The Supreme Court’s decision to overturn Roe v. Wade is far reaching and has many complicated layers – especially when it comes to emergency services provided by hospitals. 

While much of the early discussion has been about how the ruling will affect clinics, with many already closing, we are just starting to examine the effects on hospitals and frontline caregivers who will be left to fill the gaps in reproductive care.   

In this episode of Hospitals In Focus, Chip spoke with Tom Barker, the current co-chair of the health care practice and a partner at Foley Hoag, LLP. He has also served as acting general counsel for HHS and general counsel for CMS. 

Tom is an expert in the intersection of health care and the law and, without value judging, broke down how the Roe v Wade ruling could affect women in need of emergency reproductive care amidst this ever-changing landscape. 

They started by discussing the interaction of state and federal law when it comes to emergency room care. 

“Hospitals have an obligation, depending upon the state, under common law to treat anyone who comes through their doors,” Barker said. “There are the Medicare conditions of participation and the provider agreement that hospitals sign with CMS to participate in the Medicare and Medicaid programs. The statute that authorizes that provider agreement says that providers have to act in the interests of the health and safety of individuals furnished care at the facilities. And in fact, the Supreme court cited that very statutory provision and upholding the vaccine mandate earlier this year. There are also potential state law requirements, and of course hospitals need to be concerned about negligence liability under state law. So, I think there are several legal principles at play that are going to come up in as a result of this decision.”  

One federal law guiding emergency care at hospitals is the Emergency Medical Treatment and Labor Act, better known by its acronym EMTALA. Chip and Tom spoke about the important role it will play as hospitals move forward. 

“EMTALA was enacted in the mid-1980s in large part due to concerns by that were aired in congressional hearings about individuals who came to hospital emergency departments facing an emergency medical condition that might have been turned away,” explained Barker. “EMTALA imposes three obligations on hospitals. Number one, any individual who comes to the emergency department is entitled to a screening to determine whether or not the patient has a medical emergency. Second, if the patient has a medical emergency, they’re entitled to be stabilized, or if the medical benefits outweigh the risks – to be transferred to a facility that has capabilities to treat the individuals. So those three requirements, screening, stabilization and appropriate transfer are all relevant. And when Congress wrote the EMTALA statute, they specifically highlighted that a pregnant woman in labor, a woman having contractions met the definition of a medical emergency and, therefore, was entitled to stabilizing treatment or an appropriate transfer.” 

To get a better understanding of how the laws, both federal and state, could affect care in emergency rooms, Chip presented Tom with several scenarios to get his expert opinion on how a hospital should react and also highlight the complex decisions frontline caregivers will now face. The hypothetical examples ranged from how to treat a woman who arrives at a hospital in premature labor, only to find out the fetus has no chance of survival to caring for a woman who seeks care after experiencing complications from a self-administered abortion using medication. 

Each scenario emphasizes the real world issues of concern that hospitals will now face as they continue to treat all who enter their doors. Click here to listen to this informative episode.