An Impossible Choice

This is the question the United States Supreme Court will decide this term, according to a story published recently.  The court will soon hear arguments from a case in Idaho, where the state is arguing that politicians and law enforcement, not doctors, should decide what emergency care a citizen can receive.  As physicians, we have watched over the last three decades as our lives and working environments came under the control of corporate entities whose sole dedication is to their own profit.  I spent my first day working in an emergency room in the early 1990s.  Twenty years later, hospitals are being bought and sold like poker chips; local physicians are routinely “unhired” in favor of out-of-town or even out-of-state physician groups willing to come in and work for less.  I have had residents call me crying because an ER contracting group pulled their relief and left them stuck for another twelve hours after having already worked a busy shift, then were about to do it again.  The doctor is left deciding between abandoning patients and losing their license, and making a mistake from fatigue that might cost someone their life.  An impossible decision.

And now it is about to get a lot worse.  This term, the Supreme Court will decide if a physician must stand by and watch a woman die, knowing they could save her with an emergency procedure because a politician wants to get more votes from a particular sector of the population.  We have already seen this happen with pain and addiction treatment, where the risk of withdrawing treatment is ignored, while avoiding completely the risks of addiction, overdose, and diversion, are considered more important than the physician’s medical opinion or even the patient’s life.  The argument being made by several states, exemplified before the court by Idaho, is that not even a federal law can force the states to allow physicians to save the life of a patient according to evidence-based medicine if those actions are opposed by politicians who write state laws.

This is a tricky problem.  When it comes to prosecuting doctors under the Controlled Substances Act, the federal government has argued that state laws on the practice of medicine do not limit their ability to convict doctors of practicing outside an imagined “national standard,” which the federal government argues can be exemplified by a singular physician, flown in and paid for the express purpose of convincing the jury that the federal government’s opinion on the practice of medicine should prevail.  When, of course, the practice of medicine can be very different from state to state, and there is, in fact, no federal medical license. The Supreme Court has made clear many times that the federal government should not be dictating the practice of medicine, while the government has argued that it should. Now, the federal government is arguing that states cannot limit doctors from providing lifesaving care, even if it conflicts with state laws.

If Idaho prevails in a case regarding the Emergency Medical Treatment and Active Labor Act, or EMTALA, state governments will be able to force doctors to turn away patients suffering life-threatening medical complications, ignoring our special obligations to humanity, and to provide a standard medical care commensurate with those obligations. The main issue before the court is that the thirty-year-old EMTALA law requires hospitals that accept Medicare to treat anyone who comes through the door with an emergency medical condition.  Hospitals and physicians are required to provide at least stabilizing treatment to prevent that person from suffering serious medical complications.

But things got more complicated in 2021. That year, a law was passed in Texas allowing anyone to sue any person who “aids and abets” an abortion the state deems “unnecessary”. The reporting citizen can get up to $10,000 for reporting other citizens to the government. According to healthcare workers, this law, called S.B. 8, has undermined the common sense of mission and trust within caregiving teams. Now, physicians had to worry that anyone aware of the procedure might throw them under the bus for a chance to make a down payment on a new F150.  Then, it got worse in 2022 when Roe v. Wade was overturned, and every state had the right to create its own laws regarding abortion.

After this ruling, the Biden administration tried to issue clarifying guidance that if a pregnant patient arrives at the ER with an emergency condition that could only be stabilized with an abortion, the physicians are allowed and required to provide that procedure under EMTALA, no matter what the state law says.  Yet state attorneys are saying the opposite.  In a similar case where a fetus suffered from Trisomy 18 in Texas, the mother sought a court ruling that the pregnancy was nonviable and threatening her health and ability to have more children in the future.  A Texas court agreed and ruled that the required conditions existed for her to receive a procedure to protect her life and health. The state’s attorney general, Ken Paxton, disagreed, however.  Saying that he would prosecute any doctor who performed the procedure and anyone who assisted.

The doctors would have been facing first-degree felonies that could have resulted in a life sentence.  Think about that for a moment.  A woman has a pregnancy that evidence-based medical science tells us cannot result in a viable life and the patient is suffering complications from the pregnancy that could threaten her life and health.  She has availed herself of the court system’s support by going before a judge and presenting her case.  Now, a politician with a badge is telling the doctors that, no matter what a judge says, I will try to put them behind bars for life.  In this case, the woman was able to afford travel outside the state of Texas, where state laws allowed the procedure.  Yeniifer Glick was not so lucky.

According to the New York Times, Texas resident Yeniifer died outside an emergency room in Luling, Texas, in May 2022. Yeniifer had already suffered severe pregnancy complications, including hypertension as high as 213/146 that was contributing to pulmonary edema.  This condition had already put her in intensive care at least once. Jennifer was never offered an abortion, which four experts have said “would probably have saved her life.” At this point, the procedure would not have been “late-term,” a description that sets off a lot of political vitriol but is carried out in less than one percent of abortions.  Pulmonary edema creates the same sensation as drowning, as that’s what it essentially is.  On the next attack, Yeniifer was rushed to the ER, struggling to breathe with a blood pressure of 233/133.  She stumbled on her way to the ambulance and, once inside, asked where her mother was, saying, “I’m alone and scared.”

Before an ambulance can safely transport a patient, they are supposed to “stabilize” them.  The crew started an I.V. with magnesium sulfate, which can lower blood pressure and prevent seizures, and labetalol, a beta blocker to control blood pressure, but these treatments required a delay in transport. The ambulance ended up parked for almost two hours.

When the paramedics finally pulled up to the E.R., where a helicopter had been called to transport Yeniifer to Austin, it was too late.  Yeniifer had no pulse. One of the doctors said, “It’s very frustrating to have your hands tied because the patient who you need to save is not the one that’s protected by law.”