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Protesters gathered in front of the federal courthouse in reaction to the leaked Supreme Court draft opinion overturning abortion rights, May 3, 2022, in Reno, Nevada.
On Monday, the Biden administration informed hospitals that under the Emergency Medical Treatment and Active Labor Act (EMTALA), they must perform abortion services if there is risk to the life of the woman, including an ectopic pregnancy, even if their state has no such exception. The reminder of existing obligations under federal law is necessary, but not the only action the administration can take to ensure reproductive care.
The fact that hospitals have to be prodded to perform emergency services under federal law is part of the problem. Although women in the majority of states that still respect reproductive choice may feel somewhat secure for now, they are already affected by insidious hospital practices that have gotten surprisingly little attention. Thousands of hospitals, including a majority of the nation’s teaching hospitals, either ban abortion outright, actively discourage it, or limit it only to complex medical cases where the woman or the fetus is at grave risk.
This is true of some hospitals in the Northeast, Midwest, and West as well as those in states with legislative restrictions. It is true of many community hospitals that have no religious affiliation, as well as in the one-sixth of U.S. hospitals sponsored by Catholic agencies, which prohibit abortion outright.
Why is this the case? Trustees and hospital executives have been intimidated by the violence of the anti-abortion movement. They and some of their medical staff are squeamish about abortions. Even when the institution doesn’t prohibit abortions, new ob/gyn residents soon learn that the hospital’s norms are to discourage them or limit them to cases of dire medical need. It’s easier to simply send women to Planned Parenthood, whether or not hospital abortions are indicated. This is part of the reason why hospitals accounted for only 3 percent of all abortions performed in 2021.
In Florida, where abortions are legal up to 15 gestational weeks, few if any hospitals in the state allow abortions except as a medical necessity. Even in deep-blue Massachusetts, there are hospitals that ban abortions except on urgent medical grounds. In progressive Washington state, half the hospital beds are controlled by Catholic hospitals that prohibit abortions, many even for ectopic pregnancies, and there are entire counties with no hospitals that allow abortions. In Spokane, all the hospitals save one are Catholic and the one secular hospital, Multicare, prohibits most abortions.
In Washington, D.C., where abortions are legal at any stage of pregnancy, Dr. Diane Horvath-Cosper, an ob/gyn at MedStar Washington Hospital Center who had advocated for abortion rights in a 2015 Washington Post op-ed, was directed by the hospital’s chief medical officer, Dr. Gregory Argyros, to stop speaking publicly about abortion because he “did not want to put a K-Mart blue light special on the fact that we provide abortions at MedStar.” Horvath-Cosper filed a legal complaint with the HHS Office for Civil Rights and the hospital eventually backed off.
Public hospitals wary of state legislatures tend to avoid abortions. The University of Wisconsin hospital tends to shunt requests to Planned Parenthood, and in some cases sends ob/gyn clinicians to perform them off-site, but not at the hospital.
This insidious set of prohibitions by hospitals creates a variety of catch-22 dilemmas that deny women their rights.
Some formerly Catholic hospitals, such as those affiliated with Catholic Healthcare West (renamed Dignity Health), were made to sign no-abortion agreements even after they ceased being Catholic. These are known by pro-choice ob/gyns as “zombie Catholic hospitals.”
As the Prospect reported yesterday, the Supreme Court’s Dobbs ruling has caused some hospitals, in Michigan and Missouri, to issue panicky pronouncements that they will no longer provide abortion services. These statements were quickly reversed, but it shows the impulses of large hospital systems to steer clear of abortion.
In hospitals that prohibit or discourage elective abortions, the typical practice is to refer requests for abortions to an ethics committee that determines whether the abortion is “medically necessary,” and to refer most abortions to unaffiliated outpatient clinics. Routine abortions are among the safest of medical procedures. But according to a leading physician who chairs an ob/gyn department, many women seeking abortions have comorbidities such as diabetes or a propensity to bleed, and such abortions are more prudently performed in hospitals.
In some locations, there is close collaboration between Planned Parenthood and cooperating local hospitals. If a complication arises, the doctor performing the procedure goes with the patient by ambulance to a nearby hospital. This is less than ideal, but at least there is continuity of care. In Louisiana, by contrast, doctors who perform clinic abortions are unwelcome at hospitals.
This insidious set of prohibitions by hospitals creates a variety of catch-22 dilemmas that deny women their rights, and play into the hands of the anti-abortion lobby. For instance, according to the Guttmacher Institute, 19 states require abortions to be performed in a hospital if the fetus is beyond a certain gestational age, but many of these are the same states where many hospitals refuse to permit abortions at all.
Alabama requires abortion practitioners to have local admitting privileges, but Alabama hospitals typically refuse to grant these. Ohio required abortion providers to obtain a written transfer agreement with a local hospital. Then, it banned public hospitals from entering into such agreements with abortion clinics. All of these prohibitions predated the Dobbs decision.
The repeal of Roe, as has been widely reported, creates agonizing medical dilemmas in states that have taken the repeal as license to prohibit nearly all abortions. But many of these outrages exist in states where abortion is perfectly legal—because of the policies of hospitals.
According to research articles in Obstetrics & Gynecology and other scholarly journals such as Perspectives on Sexual and Reproductive Health, which surveyed hundreds of hospitals and doctors in all parts of the country, hospitals in states with no legal constraints other than restrictions on late-term abortions limit women’s legally permissible reproductive rights. Researchers found that 57 percent of teaching hospitals ban or severely restrict abortions.
Some 91 percent of hospital-affiliated ob/gyns who responded to the survey reported that they or colleagues had wanted or needed to perform abortions in the past year, but 69 percent said they encountered prohibitions or obstacles. The two leading causes cited were personal opposition to abortion from some hospital clinical staff or concerns by hospital executives that abortion was controversial.
An ob/gyn program director in the Northeast told researchers that women “are having to leave the city to have a surgical procedure that can be done at their own hospital. It’s not like we don’t have the providers and we don’t have the materials or the equipment. We have it all; they just don’t get to have [abortions] here because some of our staff are uncomfortable.”
The more the researchers drilled down, the clearer it became that the rationales for prohibiting hospital abortions were subjective and opaque, not clinical, and that many hospitals lacked formal criteria. Only 13 percent of the hospitals surveyed even had written policies.
The opposition, according to a leading ob/gyn, tends to come from some radiologists and some nurses, whose cooperation is needed to schedule and perform an abortion, and not from ob/gyns.
One doctor reported, “We are basically telling patients that we take care of, ‘We don’t think your reason is good enough.’” Another doctor said, “Nobody wants to talk about it, nobody wants to formalize it, you know, and nobody wants to kind of write any policies. It’s all sort of unspoken.”
LAST FRIDAY, PRESIDENT BIDEN ISSUED an executive order intended to defend women’s reproductive rights and health. The specifics include measures to protect privacy and actions to defend and expand access to medication abortions and emergency contraception. The order calls for a convening of state attorneys general and public-interest organizations to represent women seeking to exercise reproductive rights free from harassment. It gives the Department of Health and Human Services 30 days to come up with details.
Biden’s order is good as far as it goes. But the federal government has other powers that Biden could invoke to prevent hospitals from colluding with lobbyists and state legislatures bent on denying reproductive rights.
For instance, under rules issued by HHS and updated annually, any hospital that receives Medicare funds (which is to say all hospitals) must comply with the conditions of participation, and this includes standards of care. It makes no medical sense for a hospital to arbitrarily deny or restrict a widely used medical procedure that is part of comprehensive standards of reproductive care.
The Affordable Care Act gave HHS additional regulatory authority. The Obama administration successfully used that authority to push back against some state restrictions that sought to prohibit private insurance plans from covering reproductive services.
The HHS Office for Civil Rights was reoriented under Trump to find new ways of helping people to claim religious objections. That bias is being revised under Biden so that the Office for Civil Rights again works to advance civil rights. That of course includes gender rights. A new rulemaking is pending, and it could include standards for hospitals regarding reproductive rights.
Biden also created an interagency Gender Policy Council via one of the executive orders that he issued during his first months in office. Among its other goals, the council is directed to “increase access to comprehensive health care, address health disparities, and promote sexual and reproductive health and rights.”
In addition, medical education is heavily subsidized by the government, which allows teaching hospitals to bill at higher rates. Many of these teaching hospitals prohibit abortion, or condition it to medically urgent cases.
Ob/gyn residencies, subsidized by the government, include training in both routine abortions and higher-risk abortions, in cases of fetal deformation or risk to the health of the pregnant woman. But in states where abortion has been newly prohibited, this part of the (federally subsidized) curriculum will be illegal. The federal government can require that teaching hospitals continue to train ob/gyn residents in the full range of reproductive health procedures, or lose federal subsidy.
When Texas passed SB 8, the so-called “vigilante” law that allowed private citizens to collect bounties for informing on people seeking, performing, or aiding an abortion, HHS Secretary Xavier Becerra used his executive authority to increase family-planning funding to Texas clinics. He also doubled down on enforcement of existing laws requiring nondiscrimination against health care providers and requiring provision of emergency care, including reproductive care. The HHS statement pointedly declared: “Civil monetary penalties may be imposed against hospitals or individual physicians for EMTALA [emergency treatment] violations. Additionally, physicians may also be subject to exclusion from the Medicare and Medicaid programs [emphasis added].”
IF PRESIDENT BIDEN WERE to use Medicare, Medicaid, and ACA funding, as well as federal support for residency programs, as leverage on hospitals, there would undoubtedly be pushback and litigation. But such resolute actions would make even clearer that Biden fully supports reproductive rights and is using all available powers to narrow the impact of the Dobbs ruling and defend reproductive health.
Let’s not forget what the Dobbs ruling held. It allows states to prohibit abortion. It does not require them to do so; much less does it require a universal federal prohibition against abortion. So it is perfectly consistent with the ruling for the federal government to declare that if a state or hospital wants federal health funding, it needs practices that comply with federal requirements on standards of care.
By analogy, Lincoln first applied the Emancipation Proclamation to the North, where he had the power to enforce it. A Biden order on hospitals would be most effective in expanding women’s access to reproductive health outside of the restrictionist states, where there is no good medical excuse for hospitals to deny abortion. Litigation would establish whether the order also applied to the minority of states that prohibit abortion.
A possible hook for legal pushback against such federal orders is the series of federal laws enacted after Roe was handed down. One is the 1973 Church Amendment, which allows hospitals that receive government funding to “refuse to provide abortion or sterilization if such services are contrary to their religious or moral beliefs.” The anti-abortion movement has tried to stretch this to mean a blanket right of hospitals to refuse to allow abortions for any reason at all, but that is not what the law provided.
Another possible obstacle is the Weldon Amendment, which applies similar provisions to prevent state governments from mandating abortion services. A further concern is the Hyde Amendment, prohibiting federal funding for abortions. In recent years, the Weldon and Hyde provisions have been routinely added to annual HHS appropriations.
Democrats who voted for these laws have come to regret their votes, as well they should. (The Church Amendment passed the Senate almost unanimously.) At the time, it seemed like a prudent idea to reassure Catholics and the religious right that Roe merely allowed abortion but did not require the federal government to promote, impose, or subsidize it. But the effect of these laws was like the impact of the 1964 Gulf of Tonkin Resolution (supported by all but two Senate Democrats). Just as the Tonkin Resolution gave Lyndon Johnson carte blanche to escalate the Vietnam War, these anti-abortion amendments were an invitation for the anti-abortion lobby to pursue their 50-year crusade. Even as Biden uses all available executive authority, Congress should move to repeal all three, and certainly not include any of them in annual appropriations.
Biden could do one more thing. While some hospital executives have cravenly given aid and comfort to America’s Taliban, others have appreciated the urgency of the moment, for both the rights of women and the needs of the medical profession. After the Dobbs ruling came down, two of the Massachusetts marquee teaching hospitals, Massachusetts General Hospital and Brigham and Women’s Hospital, issued this statement, which was sent individually to all patients:
The Supreme Court ruling does not change the right to an abortion for patients receiving care in Massachusetts. Mass General Brigham will continue to provide high-quality care to all patients who come to us for care. We will do this no matter what state or country they come from. We respect the very personal, and sometimes very difficult, decisions that patients make together with their care teams.
President Biden should challenge all hospitals to issue such statements.
