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

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

Sept. 20, 2022

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?

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Host

Kate Joyce, MD, MPH

Henry Ford Hospital EM/IM, PGY4
Twitter: @sceneisnotsafe
Instagram: @sceneisnotsafe  
EMRA*Cast Episodes

Guests

Jessica Adkins Murphy, MD

EM Resident Editor-in-Chief, EMRA Board of Directors - 2021-2023
University of Kentucky Emergency Medicine Residency Program

@DrAdkinsMurphy

Andrea Contreras, MD

Obstetrics/gynecology resident, University of Texas Rio Grande Valley
Gene A. Copello Health Advocacy Fellow at Doctors for America

Cat Duffy, PhD

Policy Analyst at the National Health Law Program
@catduffy

Carmel Shachar, JD, MPH

Executive Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School
@CarmelShachar

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

Finding your state's laws and policies

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

Voting & Advocacy

Prosecution of patients

Patient Resources

Case Law

From EM organizations

National Medical Organization Statements

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