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For the first time since the Supreme Court decision overturning Roe v. Wade threw the abortion access landscape into a tailspin, the Biden administration found two hospitals violated federal law when they refused to provide an abortion to Mylissa Farmer last August. It’s an important and sadly necessary step that should hopefully clarify to hospitals in states that have banned abortion that state bans do not trump federal law.
Farmer’s story is horrific and yet increasingly common in our post-Roe reality. In August, she was about 18 weeks pregnant when her water broke, which is a medical emergency at this stage in pregnancy. She was also living in Missouri, a state that immediately banned abortion after the decision in Dobbs v. Jackson Women’s Health Organization. And despite the fact that hospitals cannot deny abortions to patients in medical emergencies like Farmer was experiencing, two separate hospitals, one in Kansas and the other in Missouri, did just that.
Advocates from the National Women’s Law Center filed a complaint on Farmer’s behalf with the Centers for Medicare & Medicaid Services (CMS) in November, arguing the hospitals’ denial of care violated the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law that says hospitals receiving federal funding via Medicare cannot turn patients away for emergency treatment—including abortion—regardless of their ability to pay. CMS is the federal agency regulating care in this context.
The National Women’s Law Center’s complaint was the first filed after Dobbs v. Jackson Women’s Health that the Biden administration has publicly acknowledged, yet we’ve heard story after story of patients turned away from hospitals and left in life-threatening conditions because doctors and hospital administrators worry about violating state abortion bans.
The situation has become so dire that OB-GYNs in states like Idaho are leaving the state, forcing hospital maternity wards to shut down entirely rather than navigate the legal threats of the anti-abortion movement.
This week’s announcement by the Biden administration that hospitals will be held liable if they turn patients away who need an emergency abortion is a bright spot in a legal landscape that has increasingly felt hostile to the existence of pregnant people and indifferent to their deaths.