In recent months, decisions and laws limiting abortion rights in the United States have forced health care providers that serve pregnant women to keep abreast of quickly changing legal restrictions affecting their practice. In North Carolina, an August federal court decision in Bryant v. Woodall lifted an injunction that had prevented enforcement of a North Carolina statute that generally bans abortions after 20 weeks of gestation. The injunction was originally issued based on the U.S. Supreme Court decisions in Roe and Casey that served to protect the right to abortion at the federal level. After the Dobbs decision overturned Roe this summer, the North Carolina federal district court found that the legal basis underlying the injunction was no longer valid.
As a result, hospitals in North Carolina now have to carefully balance the state and federal standards for emergency abortion care.
North Carolina State Law
At present, North Carolina law criminalizes abortion after 20 weeks, with a sentence of up to 39 months in prison if violated. Individuals who administer or prescribe abortion drugs or perform abortions all face criminal prosecution under this law. The law does include a medical emergency exception for abortion care after 20 weeks of gestation if the woman requires an immediate abortion “to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function.” Nothing in the law defines any of these terms. Importantly, such abortions can only be provided in a hospital licensed by the Department of Health and Human Services. They cannot be performed in clinic settings.
This means that North Carolina hospitals are at the forefront of grappling with the subjective standard of whether a procedure will avert death or eliminate serious risk of substantial harm that will cause irreversible physical impairment of a major bodily function. And the stakes are undoubtedly high since the providers are charged with making this assessment at risk of criminal charges.
Reconciling Federal and North Carolina State Law
Determining whether a patient qualifies for an emergency abortion under North Carolina law is not the end of the analysis for hospitals that operate emergency departments (EDs) because these hospitals are also subject to the requirements of the federal Emergency Medical Treatment and Labor Act (EMTALA). Under EMTALA, when a patient is at an ED, the hospital must assess whether she has any emergency medical conditions (EMCs) and provide treatment to stabilize the EMC. For pregnant women, EMCs can include preeclampsia or other hypertensive disorders, pregnancy loss complications, and ectopic pregnancies, to name only a few. In many cases, an abortion procedure may be required to stabilize the patient’s EMC. And again the stakes are high: failing to follow EMTALA requirements puts the hospital at risk of significant monetary penalties and loss of Medicare certification.
In response to states that have enacted strict abortion laws, the U.S. Department of Health and Human Services (HHS) has recently issued guidance reiterating that where abortion is the stabilizing treatment to resolve the patient’s condition, abortion must be provided. HHS also reminded hospitals that failure to follow this requirement can result in significant civil monetary penalties, physician exclusion from participation in Medicare and state health care programs, termination of Centers for Medicare and Medicaid Services (CMS) provider agreements, and civil suits for damages and equitable relief.
The difference in the EMTALA standard of “stabilizing care” for the EMC compared against North Carolina’s exception of permitting abortion only to avert death or serious risk of substantial and irreversible physical impairment of a major bodily function after 20 weeks of gestation has the potential to create a serious dilemma in close cases where the care is needed to stabilize the patient’s EMC but may not create an irreversible physical impairment if the abortion is not provided. For example, the North Carolina medical emergency exception would seemingly not apply if a woman had what a provider considered only a moderate risk of “substantial and irreversible physical impairment.” This could result in the provider waiting until the woman’s condition worsens and becomes a serious risk to move forward with treatment. However, in many such circumstances, abortion care would be appropriate stabilizing care under EMTALA.
Therefore, hospitals would be wise to not draw overt lines between what constitutes moderate or serious risk for a patient facing an EMC given that almost all EMC requiring an abortion in order to stabilize the patient will ultimately create significant risks for their patients if the patient is not stabilized.
In the Event of a Conflict, Which Law Controls?
A hospital or provider accused of violating North Carolina law in providing abortion care under the EMTALA standard would likely have a very strong defense that the federal EMTALA law preempts state law. However, even this generally well-settled preemption principle is being tested in courts. A federal court in Texas recently ruled that EMTALA does not preempt Texas’ abortion restrictions, while a federal court in Idaho found that EMTALA does preempt the state’s restrictions. These differing opinions add further uncertainty to the current risk landscape faced by hospitals. Given the recency of the Bryant decision, it remains to be seen whether there will be any efforts to test EMTALA preemption in North Carolina courts.
There are several practical steps hospitals can take to limit their risk in a thorny legal landscape:
- Policies and procedures: Ensure the policies and procedures in place outline the requirements of providing stabilizing treatment, including care that could be considered an abortion under state law, where medically appropriate, for EMCs. Provide clear guidelines of what kind of conditions and treatment can qualify under North Carolina’s medical emergency exception, as this will provide additional legal protection in qualifying cases. Game plan with clinical staff and outline clinical justifications that clearly lay out the significant risks for irreversible impairment of bodily functions if an EMC requiring abortion for stabilization is not provided. That way when faced with an emergency, staff can rely on pre-existing written justifications to support their clinical judgment.
- Documentation: Consider making changes to prompts in electronic medical records (EMRs) to include possible grounds for providing abortion-related care. Ensure that in all cases where treatment could be considered an abortion, there is extensive documentation justifying the clinical indication for the care provided. Ensure that clinicians understand that the North Carolina abortion exception creates a subjective standard based largely on their clinical judgment. A patient with an EMC will almost always be at risk of substantial and irreversible physical impairment of a major bodily function if the patient is not given necessary stabilizing care. Given that North Carolina law does not define what delineates a serious risk versus a moderate risk, documentation should be clear to provide a clinical assessment of the risk level based on the physician’s medical judgment that, where appropriate, meets the North Carolina serious risk standard. Providers should also consider not only the current risk level to the patient but the ultimate risks and outcomes if the patient is not stabilized.
- Training and education: Ensure all medical staff and providers in the ED who may come into contact with pregnant women are aware of the kinds of EMCs pregnant women may face, proper triage, assessment, and care. Provide clinicians with a clear and holistic understanding that when an abortion is required for stabilization, failure to stabilize that patient will necessarily place the patient at significant risk of impairment of a bodily function. Training should specifically address EMTALA care obligations with respect to North Carolina law.
- Communication and legal counsel: If providers have uncertainty as to whether any treatment that could be considered an abortion should be provided to stabilize a patient who is more than 20 weeks pregnant, the hospital should encourage providers to internally seek guidance from risk management at any time of day to ensure prompt resolution. If there is any doubt about the care that must be provided to a patient, consider discussions with the risk management department, internal counsel, and outside counsel. For legal advice to be effectively given in emergency situations, the hospital should already have in place effective policies, documentation requirements, and training. However, the new and varied legal issues that will arise with the change in law will increase the likelihood of requiring case-specific legal advice for patients presenting to the ED.
To date, North Carolina prosecutors have not publicly indicated a willingness to seek enforcement of North Carolina’s 20-week abortion ban in the circumstances described in this article, and data indicates that instances of such care are relatively rare However, this does not negate the fact that the potential for criminal exposure remains, and it is important that hospitals be proactive in their preparation to face these difficult decisions when emergencies arise.
As a result of the change in legal landscape, emergency medical providers subject to EMTALA now face the extraordinary burden to weigh the patient’s recommended care options and wishes with considerations of legal exposure under EMTALA and criminal exposure under North Carolina state law. In addition, providers may be forced to contend with the potential of medical malpractice claims by patients who suffer adverse results if they have a colorable claim of denial of abortion-related care that could have improved their clinical outcome. The medical-legal landscape surrounding abortion in a post-Roe world is getting more complex, and hospitals must be proactive in minimizing risk, preparing to make quick decisions in the face of emergency care needs and lining up legal counsel that can advise them in emergency situations.
For more information, please contact us or your regular Parker Poe contact.