Video: Abortion in Texas and Idaho in 2024.

On Monday, law professor Stephen Vladeck and I held a public Zoom to discuss the latest abortion litigation in Texas and Idaho. (We were joined midway by political scientist Miranda Yaver, an expert on these issues, who was kind enough to stay on stage for the duration.) The idea for this session was to take a series of text messages and conversations we’ve all been having and turn it into a public conversation that we have not seen elsewhere—one that is substantive, nuanced, informed, fact-based. The goal was to demystify some of the complexities of these cases and give a real sense for what is actually happening on the ground.

What is allowed in these states? What isn’t? And what might change soon with high-stakes cases on various dockets in the United States.

The upshot: Texas and Idaho have enacted strict abortion bans with exceptions that allow abortions to be performed if and only if that procedure is required to save the mother’s life. Some of the exceptions are obvious. But often, what counts as life-threatening is murky, leaving doctors in fear of doing the right things for their patients—and in some cases, not doing the right thing soon enough.

Three friends discussing an important topic. We are 99% sure the haziness on Miranda’s camera was a technical problem, and not a bunch of smoke.

Below, you’ll find the video and some key points of just some of what we covered. You’ll note that Benjy Renton was in the background, running production and helping find some great questions from the audience in the Q&A window, including some important ones from a couple of journalists at Politico and The Economist, as well as valued readers of Inside Medicine and One First (Steve’s amazing Substack).

We got into the nitty-gritty on some of the facts of the specific cases, but we didn’t dive quite as deeply on that as we might have with more time (and another medical expert present). So…

One more thing. We did this all—including the preparation—as a free and public service to our collective readers. If you value this work and would like to see more of this in the future, please show your support for it by upgrading to a paid subscription. Thanks!

Now, without further ado…

Key points:

1.    Background of EMTALA: EMTALA was enacted in 1986 to prevent emergency rooms from turning away patients, especially those who couldn't afford emergency medical treatment. It sets a floor for emergency care.

2.    EMTALA's Mandate and Mission: EMTALA not only mandates treating anyone who comes through the door, but ER doctors see it as a mission to help regardless of the patient's circumstances.

3.    Interpretation and Enforcement of EMTALA: EMTALA requires emergency rooms to provide stabilizing treatment to anyone with an emergency medical condition. Enforcement can be by the federal government or private lawsuits by patients.

4.    Defining 'Emergency Medical Condition': The term refers to conditions where the absence of immediate medical attention could result in serious health jeopardy, impairment, or dysfunction. This is not necessarily limited to immediately life-threatening conditions.

5.    The Scope of EMTALA and Practical Implications: In practice, EMTALA's requirements extend beyond just preventing immediate death. ER doctors also usually consider potential deterioration in health and middle or long-term outcomes.

6.    EMTALA and State Abortion Laws: The conversation discusses how EMTALA intersects with state abortion laws, particularly in states with strict abortion bans. The core issue is whether EMTALA preempts state laws that restrict abortions which might be necessary under EMTALA’s criteria.

7.    The Major Questions Doctrine: This legal doctrine is significant in the context of whether EMTALA clearly authorizes the federal government to regulate abortions across all states. It addresses the extent to which administrative agencies can assert power based on Congressional statutes.

8.    Legal Cases and Developments: The discussion touched on legal cases in Idaho and Texas where EMTALA’s relationship with state laws is being contested. Different interpretations by courts in these states highlight the complexity and contentious nature of the issue.

9.    Implications for Medical Practice and Public Health: Throughout the conversation, there was an emphasis on the real-world implications of these legal interpretations, particularly how they affect medical practitioners' decision-making and the potential impact on public health and patient care.

Questions? Comments? Please add them below.