As doctors overcome the risk of criminal prosecution in states with abortion bans, hospital leaders and lawyers leave them to fend for themselves with minimal guidance and, at times, a “conspicuous and deliberate silence,” according to The 29-page report was released Thursday Senate Finance Committee Chairman Ron Wyden. Misdirection leads to delays in providing emergency care to patients facing pregnancy complications, the report concluded.
Oregon Democrat launched the probe in September in response to ProPublica reporting of preventable maternal deaths in states with abortion bans. Wyden requested documentation of eight hospitals to see if they were complying with federal law requiring them to stabilize or transfer emergency patients; its committee has authority over the regulatory body that enforces the law. The report also draws on roundtable discussions with doctors from states with abortion restrictions.
The resulting committee staff report provides new insight into the chaotic and dysfunctional hospital landscape in states where abortion is prohibited, and a new opportunity for hospitals to consider reform and provide proactive and transparent guidance to patients and physicians.
The doctors, whose accounts were anonymous, described hospital lawyers who “refused to meet” with them for months, were “virtually impossible” to contact during life-or-death scenarios and offered little help other than “throwing out” the law, according to the report . The doctors described how other doctors issued misleading and potentially harmful information, saying patients could not legally choose their own treatment and that doctors could not legally treat ectopic pregnancy, a potentially fatal complication in which an embryo develops outside the uterine cavity.
“Doctors play lawyers and lawyers play doctors,” Wyden said in an interview. As a result, “women are injured, they suffer, they can die, and we want to make this a wake-up call so that they are better protected and that they understand what their rights are.”
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The Biden administration told hospital officials that under the federal Emergency Medical Care and Labor Act, known as EMTALA, they are responsible for stabilizing all patients who show up in emergency rooms, even if that means a procedure abortion that is in violation of state abortion law. If they cannot, as directed by the administration, they must transfer the patient to a hospital that can. Some states have struggled with this. In Texas, the court managed that the administration’s leadership could not supersede a state ban on abortion, and the Supreme Court rejected the appeal.
Information about how to resolve legal conflicts between the bans and federal law is not routinely recorded by hospitals, and in some cases is only provided on a “need to know” basis, the investigation found. Nurses who aren’t on the same emails as doctors didn’t believe they could treat patients, according to an Idaho doctor who added that doctors were left to “figure out the second or third best option.” An emergency physician who once worked in Texas said they encountered OB-GYNs who were too afraid to help provide care. Another said colleagues “just want to get these patients out of the hospital” because they worry about the professional and personal risks of treating them.
The report describes each of the ProPublica reports on five preventable deaths as examples of the fatal consequences of banning abortion. It has also increased the number of patients in crisis who are denied care. Doctors shared examples such as:
- A patient in Idaho in whom the placenta “cut off” the side of the uterus, causing massive bleeding; the bleeding patient was sent home from the ER four or five times. It wasn’t until they were “about to bleed out” that the hospital felt they were legally allowed to stabilize the patient, the doctor said.
- Another patient from Idaho, who was 19 weeks pregnant and had cramping and spotting, was sent home on the orders of maternal-fetal medicine specialists until she could be “brought to an emergency.”
- A patient whose water broke at 21 weeks and the fetus is not viable. Doctors refused to remove the fetus until the heartbeat stopped, first sending her home and then, upon her return, requiring her to wait more than six hours before they agreed to induce labor. ProPublica wrote about a similar case in Texas, when a the woman died of a fatal infection after being made to wait 40 hours for the fetal heartbeat to stop.
Wyden was able to obtain documentation and responses from hospitals that are rarely made available to the public. In December, ProPublica requested miscarriage treatment protocols from 50 Texas hospitals, which account for about half of the state’s births, according to public hospital discharge records. Almost all refused to give them. Researchers who tried to conduct a similar survey in Oklahoma last year faced similar resistance after they tried to get hospitals to share their policies for treating pregnancy complications under the state’s ban. “Physicians for Human Rights” study..
The senator requested documentation from eight hospitals across the country that were the subject of reports of delays or denials of emergency care due to pregnancy complications. He asked for their “policies, processes and procedures related to state abortion and emergency reproductive health laws.” All eight responded, sharing hundreds of pages documentation and responses that the committee published with the report. The documents provide a rare, detailed insight into the workings of private health systems that can provide doctors and ethics committees in hospitals a new understanding of what others do to respond to laws.
The response showed that many hospitals were relying on guidelines created before the abortion ban existed, the report said. In most cases, doctors were given basic EMTALA guidance that did not discuss how to deal with the new abortion restrictions, and referred questions to a lawyer or ethics consultant. Only a handful of hospitals have created proactive guidelines to help their providers navigate the new landscape, and only two have openly discussed the conflicts that exist between the abortion ban and EMTALA and how to resolve them. It was not always clear whether these directives were in place before the media reports of treatment refusal.
Freeman Health System in Missouri was found to be a violation by federal investigators EMTALA after doctors told a patient whose waters had broken at nearly 18 weeks pregnant that they could not induce labor because of the state’s new abortion law. He presented the committee with robust protocols that include a flowchart for his pregnant patient intake and informed consent documents that counsel patients about high-risk pregnancy complications that constitute a “medical emergency” under EMTALA. The Missouri hospital system was the only one of eight that said it would offer full civil and criminal defense to any health care providers sued under the state’s abortion laws, according to the report.
The treating Georgia hospital system was also interviewed Amber ThurmanA 28-year-old single mother who suffered a fatal infection as a result of a rare complication after taking abortion pills. Doctors at Piedmont Henry Hospital discussed but did not recommend a procedure to clean her uterus in time, according to a state Maternal Mortality Review Board report that concluded her death was preventable.
Piedmont told Wyden it assembled a task force after the abortion ban went into effect. The hospital said it has provided educational materials to providers about the conflicts the abortion ban can cause, including a “decision tree,” an American College of Obstetricians and Gynecologists statement on navigating exceptions to the abortion ban and guidelines for complying with the law’s documentation requirements. (ProPublica reported in September that the task force provided education in the months following Thurman’s death.)
Piedmont, Freeman and five other hospitals mentioned in the report did not respond to requests for comment. Doctor R. Cliff Moore, MD, chief of maternal-fetal medicine at Women’s Hospital of Louisiana, said that if an early diagnosis of pregnancy loss is unclear, doctors “wait for more information while the patient is stable.”
“The policy, assessment, treatment and care for early pregnancy loss at Women’s Hospital has not changed,” he said.
To protect emergency reproductive care, the report called for restoring access to abortion across America and for the federal government to enforce EMTALA “to the full extent of the law.”
But if Republicans control all branches of government next session, Wyden admits that’s an unlikely scenario.
“It’s all the more important that hospitals and provider groups step up and do what they can to make sure patients get the care they need,” he said. “That means making it clear that patients have a federal legal right to emergency care, no matter where they live, and don’t have to be on the brink of death to get it.”
The report makes four recommendations:
- He called on hospitals and hospital associations to work together to provide training, guidance and resources for doctors to ensure they provide emergency pregnancy care in states where abortion is illegal.
- It says professional medical organizations “should issue guidelines and publish standards that clearly define appropriate clinical care in obstetric emergencies.”
- This has prompted hospitals to support the full spectrum of doctors, from OB-GYNs to family medicine doctors, in obtaining certifications to prescribe mifepristone, which is part of the two-pill abortion regimen.
- It said doctors should advise patients of their rights under EMTALA and how to report violations.
