By Jaci Statton sat in her car last winter, shocked that doctors at an Oklahoma hospital had instructed her to wait in the parking lot until she became sick enough to qualify for an abortion under the state’s near-total ban. Physicians agreed that the 25-year-old had a potentially life-threatening pregnancy complication; they just didn’t believe they could legally treat her.
The case attracted national media attention, with some abortion rights advocates saying the hospital had violated a federal law requiring health care providers to treat patients in emergency situations — a measure the Biden administration has repeatedly argued requires abortions to be performed in some cases involving life-threatening pregnancies, even in states with strict bans.
But when Statton later filed a complaint with the Biden administration about how her case was handled, they rejected it and said the hospital had done nothing wrong.
“It was the closest I’ve ever felt to death,” Statton said of her experience with her partial molar pregnancy, which can cause hemorrhaging, high blood pressure and, in some cases, cancer. When she found out her complaint was denied, she said, “I felt like … maybe there was no justice.”
While the Emergency Medical Treatment and Labor Act, or EMTALA, has for decades required hospitals and doctors to provide emergency care to all patients regardless of their ability to foot the bill — or risk losing their funding under the federal Medicare program — the Biden administration has embraced the law as a novel answer to the fall of Roe v. Wade. Health and Human Services Secretary Xavier Becerra declared that women have the right to emergency abortions “no matter where you live,” vowing that the government would enforce the requirement “in no uncertain terms.” The administration also sued the state of Idaho in August 2022, arguing that the state’s strict abortion ban conflicts with EMTALA — a case that will be heard by the Supreme Court in April.
But in the 18 months since Roe fell — a period during which dozens of women have come forward with harrowing stories of medical care denied because of abortion bans — the Biden administration has only publicly announced one case, involving a patient who had sought care in Missouri and Kansas, where it determined that hospitals had violated the law in denying an abortion. The rejection of the Oklahoma complaint, a decision that was delivered to Statton in October, shocked abortion rights advocates and left them frustrated that the Biden administration was not following through on its promise to strongly enforce the law when it came to abortions.
“Jaci’s case is the perfect example of how it appears they are actually applying EMTALA in what could be charitably described as the narrowest sense,” said Rabia Muqaddam, a senior staff attorney with the Center for Reproductive Rights, who worked with Statton on her complaint. “It’s not just frustrating. It’s inexplicable, frankly.”
Federal officials said that they could not comment on Statton’s case or other EMTALA probes, insisting that their process of conducting investigations needed to remain confidential, but defended their implementation of the emergency-care law. They added that some cases have been settled quietly, with hospitals agreeing to change their policies behind the scenes.
“The Administration remains focused on working with doctors, hospitals, and patients to make these federal requirements clear while the Department of Justice defends that understanding in the Supreme Court,” Jennifer Klein, director of the White House Gender Policy Council, said in a statement.
Biden officials also confirmed one additional case that the administration had determined violated EMTALA involving a woman who presented at two different hospitals in Florida with a life-threatening pregnancy condition in December 2022. In that case, first reported by The Washington Post last year, doctors said they were unable to treat the woman under Florida’s abortion ban, which outlaws abortion after 15 weeks of pregnancy.
“We have determined that the deficiencies are so serious that they constitute an immediate and serious threat to the health and safety of any individual who comes to the emergency department and requests examination or treatment for an emergency medical condition,” Melissa Foreman, an enforcement official who works under Health and Human Services (HHS), wrote in a letter to the chief executive of one of the two hospitals, HCA Florida Northwest, in August.
HCA Florida Northwest has subsequently come into compliance with EMTALA, according to records — while the case at the other Florida hospital, Memorial Regional, is still pending as of Jan. 17. Neither hospital responded to a request for comment.
While abortion rights advocates said they were glad to hear of a second EMTALA action, they questioned why the Biden administration would issue these previously unreported warnings in secret.
“In our view, true accountability requires the public and other hospitals to know about these violations,” Muqaddam said.
Other patients with high-profile cases that might have qualified under EMTALA had never heard of the federal law and had no idea their hospital could potentially be held responsible for their treatment. Of the seven patients contacted directly by The Post, or through their lawyers, only two said they were aware of any kind of state or federal investigation into their case, and neither had been informed of any violation.
Meanwhile, the Biden administration’s interpretation of the federal law has faced fierce challenges from the right — including one challenge from the state of Texas — with Republican officials and antiabortion groups arguing that EMTALA does not cover abortion and that state abortion bans currently allow for sufficient exceptions in life-threatening cases.
“We’re not going to allow left-wing bureaucrats in Washington to transform our hospitals and emergency rooms into walk-in abortion clinics,” Texas Attorney General Ken Paxton (R) said last year, after his state won an injunction over the Biden administration’s guidance.
When Statton arrived at the OU Health University of Oklahoma Medical Center emergency room on March 6 with vaginal bleeding and debilitating nausea, she was told she was exhibiting symptoms consistent with a partial molar pregnancy, according to medical records reviewed by The Post.
But while OU doctors acknowledged the medical risks that come with that condition — including “preeclampsia, frequently severe,” according to records — the doctors told Statton that they were unable to provide an abortion under the state’s ban.
“We discussed the laws in the state of Oklahoma which restrict our ability to perform a termination only in the setting of a medical emergency, which is an immediate threat to the life of the mother, and can only be treated with a termination,” an OU doctor wrote in Statton’s file. Because Statton’s symptoms did not pose “a threat to her life,” the doctor wrote, “we are unable to offer a termination.”
A few hours after arriving at OU, Statton was transferred out of the emergency room to another part of the hospital to continue her care, according to Statton and Muqaddam. When she was again told she could not get an abortion, Statton said, her husband started pleading with the doctors, worried she might bleed out on the drive home.
“Then they said, ‘You can go sit in the parking lot and we can be ready to help you,’” Statton said.
That move within the hospital may have been the reason Statton’s complaint was denied, said Muqaddam. EMTALA only covers patients in emergency situations who require “stabilizing care for an emergency medical condition,” she said — so if a patient is transferred out of an emergency department, it’s more difficult to argue that the hospital violated the federal law.
“We do think that might be them trying to evade EMTALA,” Muqaddam said, adding that the federal law does not permit that kind of maneuvering.
Vallery Brown, a spokeswoman for OU Health, said the hospital “complies with state and federal laws and regulatory compliance standards.”
Statton’s medical records say she “desired discharge home” after she spent the night in the hospital — a characterization that Statton disputes.
“I was not okay, I was not fine,” said Statton, who ultimately traveled out of state to get an abortion. “I remember being mad whenever I read [the medical records].”
EMTALA is an imperfect tool for the post-Roe landscape, several government officials and abortion rights advocates said, in part because of the narrowness of the law.
“If you were starting from scratch on protecting abortion rights in this country, you’d never build [the strategy] around EMTALA,” said an administration official who spoke on the condition of anonymity because of litigation around the Biden administration’s abortion guidance. “That we’re here … is a testament to the failings of Congress and the realities of the courts.”
The idea to wield EMTALA as a tool for combating abortion bans originated in September 2021, when officials from the White House, HHS and the Justice Department gathered after a Texas law took effect that banned most abortions in the state. With Roe’s days thought to be numbered too, the officials were eager to ensure that patients with pregnancy complications would be able to obtain abortions if needed, recalled two people briefed on the conversations.
The Biden administration this past spring announced that two hospitals in Missouri and Kansas had violated the federal emergency care law by failing to provide treatment to a woman whose water broke at 17 weeks of pregnancy. The woman’s condition, known as pre-viable preterm rupture of membranes, or PPROM, can be life-threatening, sometimes causing a woman to hemorrhage or become septic.
News of those violations, which the Biden administration discussed in public statements, caused some hospitals to change their policies around PPROM. At least one doctor in Idaho said she used the outcome to pressure her hospital’s lawyers into explicitly allowing doctors to provide abortions for patients with that condition.
But the Biden administration’s goals for deploying EMTALA to ensure abortion access have faced many challenges in practice, said three current and former officials involved with the administration’s abortion strategy, who spoke on the condition of anonymity to describe internal agency workings.
One challenge has been the often circuitous, months-long process of determining whether an EMTALA violation occurred. Complaints filed by patients or health workers trickle to federal Medicare officials, who sometimes open probes after simply reading about potential violations in the media. Federal officials can then authorize state health agencies in the antiabortion states where the events took place — which are sometimes the same institutions tasked with enforcing the abortion bans themselves — to send their own staff to investigate the complaint. Ultimately, state workers produce a report that is passed back to the federal government, which decides whether a violation occurred, engages in a physician peer review and sets potential punishments.
Officials said there are numerous opportunities for the process to break down, such as state workers who are confused by whether an incident constitutes an EMTALA violation — or simply not inclined to aggressively pursue the complaint.
Lawyers at the Center for Reproductive Rights discussed the possibility of filing an EMTALA complaint with Statton several months after she was denied care at OU, said Muqaddam, describing the federal law as a tool that could remind hospitals of the obligations they have to their pregnant patients.
Frustrated by comments from politicians suggesting that cases like hers were “made up,” Statton said, she agreed to take whatever action she could to compel hospitals to care for other patients in similar situations.
“I just remember wanting to be like, ‘I’m not made up, I’m right here,’” Statton said.
