Last week’s vote on H.R. 538, the Let Women Die Act of 2011, was a deeply disappointing new low for the House of Representatives, even if the outcome was unsurprising given the chamber’s recent record of extremist, anti-woman bills. The heated debate occasioned dueling Dear Colleague letters by Rep.’s Jan Schakowsky (D-IL) and the author of the bill, Rep. Joseph Pitts (R-PA), that made competing claims about the critical issue of whether the bill newly imperils the lives of women by allowing institutions and doctors to refuse to provide care even in life-threatening emergencies.
The dispute concerns the present scope of patient protections offered by an anti-patient-dumping law, the Emergency Medical Treatment and Active Labor Act, or EMTALA. Schakowsky’s letter highlighted the issue by noting that the “bill would, in effect, strip EMTALA of its power to ensure that women in emergency situations receive abortion care at hospitals by making their right to health care secondary to the hospital’s ability to refuse to provide abortion care.” Pitts, on the other hand, claimed in his Dear Colleague that because EMTALA already includes a reference to the “unborn child,” then “EMTALA currently recognizes both lives.”
Who’s right? A basic review of the law says that Schakowsky is, by a mile. EMTALA uses the words “unborn child” in three places; all three make clear that the protection is intended to assure that a hospital seeking to transfer a woman in “active labor” (as in the title of the Act) must assess any health risks associated with the transfer for both the woman in labor and the child she is about to deliver. The law does not, as Pitts claims, confer a freestanding interest in the health of an “unborn child” that would allow hospitals to deny care to a woman experiencing a miscarriage. If it did so, this aspect of the Pitts bill would be superfluous.
In fact, in this American Journal of Public Health article by Lori Freedman, a religiously-affiliated hospital that actively refused to complete a miscarriage and risked a woman’s health in doing so, was reported for an EMTALA violation when it sought to transfer the patient.
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“Dr B, an obstetrician-gynecologist working in an academic medical center, described how a Catholic-owned hospital in her western urban area asked her to accept a patient who was already septic [suffering from infection].
When she received the request, she recommended that the physician from the Catholic-owned hospital perform a uterine aspiration there and not further risk the health of the woman by delaying her care with the transport.
[From the doctor:] “Because the fetus was still alive, they wouldn’t intervene. And she was hemorrhaging, and they called me and wanted to transport her, and I said, ‘‘It sounds like she’s unstable, and it sounds like you need to take care of her there.’’
And I was on a recorded line, I reported them as an EMTALA violation. And the physician [said], ‘‘This isn’t something that we can take care of.’’ And I [said], ‘‘Well, if I don’t accept her, what are you going to do with her?’’
[He answered], ‘‘We’ll put her on a floor [i.e., admit her to a bed in the hospital instead of keeping her in the emergency room]; we’ll transfuse her as much as we can, and we’ll just wait till the fetus dies.’’
This risky delay in care is caused by hospitals’ adherence to the Religious Directives put forward by the Catholic bishops – including in cases in which the Directives clearly conflict with commonly accepted medical standards. The Directives specify that hospitals must wait until the fetal heart tone ceases before acting to complete a miscarriage, even if the pregnancy is clearly no longer viable. Yet in the meantime, as in the case described by this doctor, women are at risk of becoming septic, a serious and life-threatening form of infection, and death.
One loophole that is rarely mentioned but is highlighted by the above story is that the protections of EMTALA cease to apply if a patient is admitted from the emergency room into the hospital, which may be one mechanism by which religiously affiliated hospitals currently escape the conflict while continuing to deny care. In addition, if no one is seeking to transfer a patient, EMTALA is silent on the quality of care given to the patient, as courts have been clear that EMTALA does not, by itself, set out a standard by which to judge medical negligence. Ironically, then, if no physician seeks out a transfer to a facility willing to provide more appropriate care, thus risking a violation of EMTALA, patients may fall through the cracks, as Freedman’s article describes.
The Pitts bill would also allow institutions to insist on policies that deny care to patients, even trumping the professional judgment and medical training of physicians. Freedman’s report tells one such story: a doctor appalled at the denial of care to a woman in the midst of miscarriage – a woman so ill that her eyes filled up with blood from the infection caused by the delay – subsequently quit his job in disgust. While his decision to resign assuaged his conscience, the next woman to find herself in a similar situation at that hospital may be even worse off, because the hospital has lost at least one doctor who prefers science-based medical care.
Nationally, one-sixth of hospital visits are to religiously-affiliated hospitals, that serve millions of people. The notion that care would differ so drastically from one emergency room to the next is out-of-step both with public health needs and with the beliefs of even religious adherents, who, polls indicate, agree with the broader public that access to medical care should not be restricted by religion. Women should not have to engage in a game of Russian roulette at their local hospital emergency room.
Only physicians, not institutions, have a conscience. Granting institutions a right of refusal merely guarantees that the very real consciences of doctors who choose to provide care consistent with their own beliefs and medical training will not be able to do so. Chillingly, the Pitts bill would ensure that hospitals’ institutional dictates, including those at odds with medical science, could override the consciences of the doctors who work for them, even when those dictates unreasonably risk women’s lives.