BISMARCK, N.D. – The American Medical Association and North Dakota's only clinic providing abortions are suing the state over two laws related to the procedure.
The AMA has joined Red River Women's Clinic in Fargo on its challenge to a bill passed this legislative session that requires doctors to tell patients that medication-induced abortions are reversible, a claim the AMA says has no basis in science.
The law is set to go into effect Aug. 1.
Dr. Patrice Harris, president of the AMA, says this lawsuit defends physicians' freedom of speech and, if it goes forward, could undermine the trust between doctors and patients.
"The government should absolutely not compel speech in the first place, but in the second place, speech that is false or misleading and not based on the science," she states.
Harris stresses that entering into this lawsuit does not represent a change for the AMA, noting that the group has a long standing policy of opposing government interference in the practice of medicine, such as mandating speech.
The lawsuit also challenges an existing North Dakota law requiring physicians to tell patients that abortions terminate "the life of a whole, separate, unique, living human being."
Tammi Kromenaker, director of the Red River Women's Clinic, says the misleading nature of this new measure and the existing law violate doctors' medical ethics.
"Doctors take a vow,” she points out. “First, do no harm, and when you mislead or lie to your patients, you can be doing them harm.
“You can harm your relationship with them. You can harm them with bad information. And so, we just really believe that the state should not be mandating what physicians and the rest of the health care team has to say to patients."
North Dakota and seven other states have passed laws requiring doctors to tell patients about so-called medication-abortion reversal. Five of the states passed their laws this year.
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By Mary Anne Franks for Ms. Magazine.
Broadcast version by Alex Gonzalez for Northern Rockies News Service reporting for the Ms. Magazine-Public News Service Collaboration
People end up in emergency rooms for a variety of reasons. They’re having trouble breathing. They’ve suddenly developed chest pains. They’re bleeding uncontrollably. They’ve fallen off a roof, they’ve crashed their car, they’ve overdosed, they’re suicidal, they got stabbed in a fight, they got shot by police.
Some people who need emergency services are poor, or have no insurance, or are in the country illegally, or have committed a crime. Under the federal Emergency Medical Treatment and Labor Act (EMTALA), they are all entitled to receive emergency care. This law is based on a simple principle: Hospitals shouldn’t be allowed to let people die based on who they are, how much they can pay, or what they have done.
On April 24, the Supreme Court will hear oral arguments in Moyle v. U.S., a case that will determine whether individual states are allowed to exclude a single group from this basic protection: pregnant women. The state of Idaho claims that it has the right to forbid pregnant women and girls—and only pregnant women and girls—from receiving emergency care that could save their lives.
How, and why, would a state want to do this?
First, the how: In 2022, the Supreme Court ruled in Dobbs that forced childbirth does not violate the Constitution. This allowed Idaho’s 2020 “Defense of Life Act,” a draconian anti-abortion law, to go into effect. According to the law, anyone who performs an abortion faces imprisonment of up to five years in prison. Healthcare professionals who perform abortions will also have their professional licenses suspended or revoked permanently.
This puts the state law directly in conflict with federal emergency care law. EMTALA requires Medicare-funded hospitals (which most hospitals are) to provide medically necessary stabilizing treatment to any patient with an “emergency medical condition.” An emergency medical condition is one that, in the absence of immediate medical attention, is likely to cause “serious impairment to bodily functions,” “serious dysfunction of any bodily organ,” or otherwise puts the health of the patient “in serious jeopardy.”
Pregnancy complications are a common reason for emergency care visits, and the medically necessary stabilizing treatment necessary to prevent serious injury or death to women and girls experiencing those complications sometimes includes the termination of the pregnancy.
Given that an abortion is sometimes the only medical treatment that will prevent death or serious bodily injury to women, a more accurate title for Idaho’s abortion law would be the “Let Women Die Act.” But as seen in the majority decision in Dobbs and the arguments propounded recently by the Alliance Defending Freedom in the mifepristone access case, forced birth proponents are rarely candid about their necropolitical agenda. Defenders of Idaho’s law instead feign outrage at the suggestion that the law will kill women, pointing to the law’s exception for abortions performed by a physician who “determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”
Idaho insists that the law’s exception for abortions necessary to save the life of the mother means that there is no conflict between it and federal law. But as the Department of Justice pointed out when it sued to stop the Idaho law from being enforced with regard to EMTALA’s requirements, federal law requires emergency medical care necessary to prevent serious injury, not just death. The federal law does not authorize the withholding of essential medical treatment to patients who are only close to, but have not yet arrived, at death’s door.
What is more, as countless medical professionals have attested, the line between serious bodily injury or death is rarely precise. It is often difficult, if not impossible, to predict the exact moment that a serious medical condition becomes a life-threatening one.
As the National Women’s Law Center detailed in its amicus brief in the case, “No clinical bright line defines when a patient’s condition crosses the lines of this continuum. At what point does the condition of a pregnant woman with a uterine hemorrhage deteriorate from health-threatening to the point that an abortion is ‘necessary’ to prevent death? When is it certain she will die but for medical intervention? How many blood units does she have to lose? One? Two? Five? How fast does she have to be bleeding?”
The recognition that serious bodily injury and death are so closely related as to be nearly indistinguishable has long been reflected in U.S. law. At common law, a person could be convicted of murder not only if he intended to kill but also if he intended to inflict “grievous bodily injury.” The law of self-defense generally allows a person to use deadly force when facing an imminent threat of death or serious bodily harm, not only to herself but to others.
Significantly, Idaho’s self-defense law specifies that a person is not required to wait for the danger to become fully apparent before acting: “The defense of self or of another does not require a person to wait until he or she ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.”
Unless, of course, the person in danger is a pregnant woman.
Mary Anne Franks wrote this article for Ms. Magazine.
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The U.S. Supreme Court is set to hear oral arguments today in a case about whether patients have access to emergency room abortions in states banning the procedure.
Idaho v. United States could determine if providers can perform medically necessary abortions for women experiencing complications under decades-old rules known as the Emergency Medical Treatment and Labor Act.
Dr. Polly Wiltz, a second-year emergency medicine resident at University Hospitals in Cleveland, said she is worried about her ability to care for patients who need abortions, if protections end.
"We are putting ourselves at risk for allowing legislators -- allowing people who do not have medical training -- to pick and choose which procedures, which life-stabilizing treatments and medications can and cannot be applied in the emergency department," Wiltz pointed out. "It's infringing on patient rights."
The Center for American Progress said pregnant patients with severe complications who are denied abortions could develop severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury and other severe conditions.
Wiltz added most of the patients with pregnancy complications coming into the hospital lack access to routine OBGYN-related care.
"Regarding pregnancy related complaints, I see first trimester pregnant patients every single day," Wiltz noted. "In my shift, I have caught ectopic pregnancies that have ruptured."
Hospitals made up 33% of the facilities providing abortions in 2020, according to data from the Pew Research Center. Last fall, a majority of Ohio voters chose to approve a constitutional amendment, "Issue 1," establishing a statewide right to abortion and reproductive care in the aftermath of the Roe versus Wade decision.
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The U.S. Supreme Court will hear oral arguments this week on Idaho's near-total abortion ban.
Idaho v. United States is on the docket for Wednesday.
At issue is whether the ban violates the Emergency Medical Treatment and Labor Act, which prohibits hospitals from denying patients medical care because of financial or insurance issues.
The Idaho law has restricted access to reproductive care. Rory Cole is a fourth-year medical student at the University of Washington who is from Idaho and plans to practice in the state.
"A lot of these patients that we've been seeing don't really have a choice anymore, in that sense of it's not about if they want to be pregnant or not," said Cole. "It's about saving their life or their health, and we can't help them in Idaho."
Other states will be watching Idaho's Supreme Court case, and it could have an outsize impact on rural states that ban abortion, leaving patients with few options for care.
Cole said the Idaho law puts doctors in a tough place.
"The wording is so vague in the legislation here, that it makes it just extraordinarily challenging for doctors to kind of know what is legal and what is not legal here now," said Cole, "which is a place that no physician wants to exist in."
Idaho has seen an exodus of medical providers. The state has lost 22% of its practicing obstetricians since its abortion ban took effect, according to a recent report.
"Ultimately," said Cole, "that place of needing to help the people in Idaho and the people here deserving wonderful care was what brought me to basically try and stay in Idaho for residency."
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