Katie O'Connor, Senior Director of Federal Abortion Policy for the National Women's Law Center, spoke to ForbesWomen editor Maggie McGrath about the Trump administration rescinding a guideline around emergency healthcare for pregnant people.
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00:00Hi, everyone. I'm Maggie McGrath, senior editor at Forbes and editor of Forbes Women.
00:08The Trump administration this week rescinded a policy from the Biden administration that
00:14effectively protected pregnant people in emergency medical situations. This rescinding leaves open
00:23a ton of questions for pregnant patients and what it means for their care in emergency
00:28settings. Joining me to discuss this very important issue is Katie O'Connor. She is the senior
00:35director of federal abortion policy at the National Women's Law Center. Katie, thank you so much for
00:41joining us. Thanks for having me, Maggie. So I was speaking in very broad terms because when it comes
00:47to EMTALA, the specifications can get a little complicated, but can you lay out for us what did
00:53federal policy say before this week? And what is the Trump administration saying now when it comes
00:59to pregnant patients who enter an emergency room and might require emergency abortion care?
01:06Yeah, so this all started, well, I should start with saying, you know, EMTALA is a 40-year-old law.
01:11It was passed by an overwhelmingly bipartisan majority. It has been understood for all of its
01:20history to protect everybody who goes into an emergency room needing emergency care, needing
01:26stabilizing care. And that has never been understood to exclude pregnant people. So there's a wealth of
01:35examples of pregnant people going into emergency rooms, receiving this care because of EMTALA.
01:42And after, in the immediate aftermath of the Dobbs decision overturning Roe versus Wade, the Biden
01:50administration issued guidance. And all that guidance did was reminded hospitals of their existing
01:56obligations under EMTALA, reminding them that even if there's an abortion ban in the state, EMTALA is a federal
02:03law that preempts state law and that requires emergency abortion care where that is the necessary
02:09stabilizing care. So what we saw on Tuesday was this administration rescind that guidance. But I think
02:17the one thing I want everybody to understand is that this administration can rescind the guidance, but it
02:22can't change the underlying law. And so EMTALA, the underlying law, continues to protect people's
02:28right to get this care where it's the necessary stabilizing care.
02:33I think that's a really important point. And can we just go into a potential
02:36situation, an anecdote, a hypothetical anecdote for when a situation would require an emergency
02:43abortion? So it's a patient who is pregnant with a wanted pregnancy, but she experiences some kind of
02:50medical emergency and doctors make the recommendation that to preserve her life, there needs to be an
02:58abortion. Is that kind of the general, very broad hypothetical proceeding here?
03:03That's correct. With one caveat. So most of the abortion bans in the states that ban abortion
03:11do have exceptions that vary in sort of their narrowness. They're all pretty narrow. But some of
03:19them allow abortions in the case where it's needed to preserve a person's health. And then in some states
03:25like Idaho, for example, the only exception is to prevent the death of the pregnant person.
03:30EMTALA is important because it actually protects access to abortion care where it is necessary to
03:38preserve a person's health. So it's broader than just life-saving care. It is also to ensure that a
03:46person's health doesn't deteriorate.
03:49That's an important distinction. And now you mentioned some of the state-by-state differences,
03:53and I think this is important to hit on because folks who've been paying close attention to this
03:57might remember that we were talking about EMTALA last year as it related to state-specific Supreme
04:02Court cases. Katie, can you take us through where we stood on a state-by-state basis? And was EMTALA
04:09overridden in any one state before this week?
04:14That is a tricky question. So there have been a couple of cases that were filed since the Dobbs decision.
04:21One of the cases was actually filed by the Biden administration against the state of Texas.
04:26And the Biden administration said, your abortion ban is too narrow. There are cases where EMTALA
04:34would require a doctor to provide an emergency abortion, and your state abortion ban would prohibit
04:41that care. And so the Biden administration said, where those two laws conflict, EMTALA overrules the
04:50state law. And that's the case that the Biden administration was litigating. And as you might
04:55remember, a couple of months ago, the Trump administration decided to drop that case. In the
05:02meantime, there is a large health care provider in Idaho called St. Luke's. It is the top health care
05:10provider in the state. It filed its own lawsuit, essentially like following up with what the Biden
05:17administration had done in its lawsuit. That case is pretty slow moving, but it will eventually make
05:22it to the Supreme Court. The other case that I will mention is a case in Texas where the state of Texas
05:29filed suit against the Department of Health and Human Services, challenging the guidance itself.
05:35The Fifth Circuit actually ruled in favor of the state of Texas. And so the guidance is not in effect
05:43in Texas. But as I said earlier in this interview, the guidance doesn't really matter because the
05:49statute itself requires this care. So all of these cases are ultimately just contributing to the
05:57confusion that hospitals and providers and patients are experiencing and have been experiencing since
06:03the Dobbs decision.
06:05So effectively, we have a federal guidance saying doctors must provide life-saving, life-preserving
06:13care for patients. If that patient is pregnant and if that life-preserving care does involve an
06:19abortion, those doctors need to perform the abortion whether or not the state that they're in is
06:25quibbling over the matter. Is that kind of fair?
06:28That's right. It's essentially, you know, our constitutional system works as under the supremacy
06:34clause, like the federal statutes are supreme to state statutes. And so what the federal law says
06:43is what goes. And that's what the Biden guidance had indicated. And it is the fights over this that
06:52are contributing to the confusion and fear, honestly.
06:58And that's why I'm pressing on the specifics of the law, because I think when individual people
07:03see these headlines, hear these headlines, they might not know what it means for them.
07:09So what are you hearing at the National Women's Law Center? Are patients confused? Are they calling
07:14saying, I don't know what to do? What do I say to my doctor? Or what are the conversations you've
07:19been having this week?
07:21I think people are still waiting to see what the fallout from the rescission of this guidance is
07:26going to be, to be perfectly honest. You have a lot of nationwide organizations that represent
07:33emergency health care providers, that represent obstetricians and gynecologists, that represent
07:40other health care systems. And I think they are all sorting through what this is ultimately going to
07:45mean. And so I unfortunately don't have a lot of, a lot of intel on that other than to say,
07:53again, this is a shift. And it is, you know, it has just been three years since Dobbs,
08:00and it's been a constantly shifting legal landscape in a lot of states around what care is required,
08:07what care is allowed, and what care is prohibited. And what happened this week is just contributing
08:14to that shifting legal landscape.
08:18How much of a surprise was this week's announcement, to you at least? Because I have to say,
08:23from the Trump administration, given all the focus on tariffs and some of the other issues that have
08:29been in the headlines, I was surprised to see MTALA pop up when it did. But had there been inklings that
08:36they were about to come out with this? There had been. And this is primarily because there was another
08:42lawsuit that was filed in January of this year in the Mill District of Tennessee, so in a federal court
08:49in Tennessee. And it was filed by an organization called the Catholic Medical Association. And that lawsuit
08:55was also a challenge to the Biden administration's guidance on MTALA. So we knew that there was a
09:01deadline coming up for the Trump administration to respond to that lawsuit. And that sort of forced
09:07their hand here. I agree with you that it's kind of a weird time that there are, there's a lot of other
09:14political news happening. But that was what forced the Trump administration to do this when it did it.
09:21A lot of political news, but let's be clear, this is important because it affects people's lives.
09:27Can you give a sense for what the repercussions of this announcement could be if it stands,
09:34if somehow MTALA ceases to be the federal guidance?
09:40Yeah. So again, I mean, I hope and trust that hospitals are going to understand that the statute
09:46itself, that MTALA hasn't changed, and that this is just, this is just a rescission of guidance that
09:55reminded hospitals their obligation. I think what is most likely to happen, this is probably a sign that
10:02this administration isn't going to enforce MTALA the way that the past administration did, and frankly,
10:09the way that past administrations for decades have done. So I think that's probably the,
10:15the concrete effect here is we're just not going to see as many enforcement actions.
10:20And what could be the follow-on for patient care? Will people die?
10:26Yes. I think people will suffer unnecessarily, and some will die because of the confusion that
10:33is caused by what the Trump administration has done this week.
10:36What are the steps forward? The perhaps ways that your organization and other national
10:44women's reproductive health care organizations are perhaps fighting this or trying to
10:51soften some of the confusion? I recognize that in the years since the Dobbs decision came down,
10:56that legal landscape that you laid out state by state, it can be very confusing. But what are the
11:01concrete steps that you and others will be taking in the aftermath of the Trump administration's
11:06announcement this week?
11:07Well, I think a couple of things are going to happen. First of all, I mentioned a lawsuit that
11:13is still being litigated in Idaho. That lawsuit will take a while to get to the Supreme Court,
11:20but I do think it'll get to the Supreme Court and probably in the next couple of years.
11:23That lawsuit will hopefully provide the clarity that we all need. And we would hope and expect for
11:31the Supreme Court to say unequivocally that EMTALA requires providers to provide abortion care where
11:39it is the necessary care for a person who's experiencing a medical emergency. Until the Supreme Court says
11:47that and says that explicitly, I think we will continue to see a lot of fear and a lot of confusion
11:53in emergency rooms across the country. But I do hope and expect that hospitals will look at what
12:02happened this week and recognize that it doesn't change their legal obligations, that it is only a
12:08signal of the priorities of this administration, which is obviously appalling that this administration
12:16is abandoning pregnant people when they're in need of emergency care. But again, it doesn't change the
12:24underlying law here.
12:27I think that's an important note. It's effectively a political message, not a medical message.
12:32That's right.
12:33Is there anything else our Forbes audience should know and understand about this week's Trump administration
12:39announcement regarding guidance around emergency abortion care in the United States?
12:43I don't think I have anything to add. I would just, you know, I am very disappointed that this happened.
12:53I am also not surprised. Something that I continue to think about is that we are less than, we are just shy of
13:03three years out from the overturning of Roe versus Wade.
13:05It has been clear to me and to most people who do this work for a long time that the anti-abortion movement was
13:14never going to be content with overturning Roe versus Wade. It was never going to stop until abortion is
13:21prohibited everywhere for everyone and under every circumstance. And I'm just surprised that it has only
13:29taken three years for us to get to this point where we are, where pregnant people are, you know,
13:37begging for their lives.
13:40Sobering words. Katie O'Connor from the National Women's Law Center. Thank you so much for joining us.
13:45We'll have to have you back as we continue to follow this issue. But for the meantime, thank you so much.