Amicus Curiae Brief — Mike Moyle, Speaker of the Idaho House of Representatives, et al., Petitioners v. United States
Supreme Court briefMar 28, 2024
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Nos. 23-726 & 23-727
IN THE
Supreme Court of the United States
————
MIKE MOYLE, SPEAKER OF THE IDAHO
HOUSE OF REPRESENTATIVES, et al.,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
————
THE STATE OF IDAHO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
————
On Writs of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
————
BRIEF FOR AMICI CURIAE COUNTY OF
SANTA CLARA AND 12 OTHER CITIES AND
COUNTIES IN SUPPORT OF RESPONDENT
————
TONY LOPRESTI
County Counsel,
County of Santa Clara
KAVITA NARAYAN
MEREDITH A. JOHNSON
RACHEL A. NEIL
Counsel of Record
70 West Hedding Street
East Wing, Ninth Floor
San José, CA 95110
(408) 299-5900
rachel.neil@cco.sccgov.org
Counsel for Amici Curiae
(Counsel listing continues on signature page)
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................
ii
INTEREST OF AMICI CURIAE ........................
1
SUMMARY OF ARGUMENT .............................
2
ARGUMENT ........................................................
4
I.
Allowing States to Block Medically
Necessary Emergency Abortions Would
Undermine EMTALA’s Goal of Ensuring
Hospitals Share Responsibility for
Emergency Medical Services ....................
6
Allowing States to Prohibit or Delay
Medically Necessary Emergency Abortions
Threatens to Erode Public Trust in
Healthcare Providers and Thereby
Undermine the Public Health and
Welfare ......................................................
13
A. Allowing States to Prohibit or Delay
Medically Necessary Emergency
Abortions Will Undermine Patient
Trust.....................................................
13
B. Allowing States to Prohibit or Delay
Medically Necessary Emergency
Abortions Will Harm the Broader
Public ...................................................
17
CONCLUSION ....................................................
21
II.
(i)
ii
TABLE OF AUTHORITIES
STATUTES
Page(s)
Emergency Medical Treatment and
Labor Act,
42 U.S.C. § 1395dd................ 2-4, 6-9, 12, 16, 17
Idaho Code § 18-622 .....................................
3
OTHER AUTHORITIES
131 Cong. Rec. 28568 (1985) ........................
8
Am. College of Obstet. & Gyn., Code of
Professional Ethics (Dec. 2018) ................
15
Anne Flaherty, Feds Say Hospital Broke
the Law by Refusing to Provide LifeSaving Abortion, ABC News (May 1,
2023, 2:32 PM), https:// abcnews.go.com/
Politics/feds-hospitals-broke-law-refusingprovide-life-saving/story?i d=98990243 ...
16
Assistant Sec’y for Plan. & Evaluation, Off.
Health Pol’y, Impact of the COVID-19
Pandemic on the Hospital and Outpatient
Clinician Workforce: Challenges and Policy
Responses (2022), https://aspe.hhs.gov/
sites/default/files/documents/9cc72124ab
d9ea25d58a22c7692dccb6/aspe-covid-wo
rkforce-report.pdf ......................................
11
Carly Parnitzke Smith, First, Do No Harm:
Institutional Betrayal and Trust in Health
Care Organizations, 10 J. Multidisc.
Healthcare 133 (2017) ..............................
13
iii
TABLE OF AUTHORITIES—Continued
Page(s)
Caroline Kitchener, Two Friends Were
Denied Care After Florida Banned Abortion.
One Almost Died, Washington Post (April
10, 2023, 6:00 AM EDT), https://www.
washingtonpost.com/politics/2023/04/10/
pprom-florida-abortion-ban ......................
17
Catherine Jane Golics et al., The Impact of
Disease on Family Members: A Critical
Aspect of Medical Care, 106 J. Royal Soc.
Med. 399 (2013), https://www.ncbi.nlm.
nih.gov/pmc /articles/PMC3791092/ .........
19
Centers for Medicare & Medicaid Services,
NHE Fact Sheet, CMS (Dec. 13, 2023),
https://www.cms.gov/data-research/stat
istics-trends-and-reports/national-healthexpenditure-data/nhe-fact-sheet#:~:text=
Medicare%20spending%20grew%205.9%
25%20to,29%20percent%20of%20total%
20NHE .......................................................
8
Consumer Financial Protection Bureau,
Medical Debt Burden in the United States
(2022), https://files.consumerfinance.gov/
f/documents/cfpb_medical-debt-burden-inthe-united-states_report_2022-03.pdf ......
19
Daily Briefing: America Deliberately
Limited Its Physician Supply—Now It’s
Facing a Shortage, Advisory Bd. (Mar. 18,
2023), https://www.advisory.com/daily-br
iefing/2022/02/16/physician-shortage .......
10
iv
TABLE OF AUTHORITIES—Continued
Page(s)
David U. Himmelstein et al., Patient
Transfers: Medical Practice as Social
Triage, 74 Am. J. Pub. Health 494 (1984) ..
7
H.R. Rep. No. 99-241 (1985).........................
6
Jessica T. Lee et al., Trends in Post–Acute
Care Use After Admissions for Sepsis, 17
Ann. Am. Thoracic Soc’y 118 (2020),
https://www.ncbi.nlm.nih.gov/pmc/articl
es/PMC6944346/ .......................................
12
Jim O’Brien, The Cost of Sepsis, Ctr. for
Disease Control and Prev. (Sept. 8, 2015),
https://blogs.cdc.gov/safehealthcare/thecost-of-sepsis/ ............................................
12
Johanna Birkhäuer et al., Trust in the
Health Care Professional and Health
Outcomes: A Meta-Analysis, Pub. Libr.
Sci. ONE, Feb. 7, 2017 ..............................
18
Joseph Zibulewsky, The Emergency Medical
Treatment and Active Labor Act
(EMTALA): What It Is and What It Means
for Physicians, 14 Proc. Baylor Univ.
Med. Ctr. 339 (2001) ................................. 7, 11
L. Lewis Wall & Awol Yemane, Infectious
Complications of Abortion, 9 Open Forum
Infectious Diseases, Nov. 23, 2022 ...........
11
v
TABLE OF AUTHORITIES—Continued
Page(s)
Laura Santhanam, How Abortion Bans Will
Likely Lead to More Deadly Infections, PBS
NewsHour (July 27, 2022, 2:13 PM EDT),
https://www.pbs.org/newshour/health/ho
w-abortion-bans-will-likely-lead-to-moredeadly-infections .......................................
15
Nao Oguro et al., The Impact that Family
Members’ Health Care Experiences Have
on Patients’ Trust in Physicians, BMC
Health Servs. Rsch., Oct. 19, 2021 ...........
18
National Association of Counties, Medicaid
and Counties: Understanding the Program
and Why It Matters to Counties (2024),
https://www.naco.org/resources/medicaidand-counties-understanding-program-andwhy-it-matte rs-counties-0 .......................
10
New Report: Costs of Caring for Sicker
Patients to Drive Continued Hospital and
Health System Losses Throughout 2021,
Amer. Hospital Ass’n (Sept. 21, 2021),
https://www.aha.org/press-releases/202109-21-new-report-costs-caring-sicker-pat
ients-dri ve-continued-hospital-and .........
11
Patrice Taddonio, Why Safety-Net Hospitals
Serving Low-Income People May Be “On
the Brink of a Precipice,” PBS (May 18,
2021), https://www.pbs.org/wgbh/frontlin
e/article/safety-net-hospitals-struggle-en
dangers-care-for-low-income-patients/..... 10-11
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Paula Chatterjee et al., Essential but
Undefined — Reimagining How Policymakers Identify Safety-Net Hospitals,
383 New England J. of Med. 2593 (2020)
10
Press Release, U.S. Dep’t Health & Hum.
Servs., HHS Secretary Xavier Becerra
Statement on EMTALA Enforcement
(May 1, 2023), https://www.hhs.gov/abo
ut/news/2023/05/01/hhs-secretary-xavierbecerra-statement-on-emtala-enforcemen
t.html .........................................................
16
Rachel Warby et al., EMTALA and Patient
Transfers, StatPearls, Nov. 22, 2023 .......
7
Roman Lewandowski et al., Restoring
Patient Trust in Healthcare: Medical
Information Impact Case Study in
Poland, BMC Health Serv. Rsch., Aug.
24, 2021 .....................................................
18
Sepsis, Mayo Clinic (Feb. 10, 2023), https://
www.mayoclinic.org/diseases-conditions/
sepsis/symptoms-causes/syc-20351214 ....
15
Shannon McConville & Shalini Mustala,
California’s Health Care Safety Net, Pub.
Pol’y Inst. of Cal. (May 2023), https://
www.ppic.org/publication/californias-hea
lth-care-safety-net/....................................
10
Thomas A. LaVeist et al., Mistrust of
Health Care Organizations is Associated
with Under-utilization of Health Services,
44 Health Servs. Rsch. 2093 (2009) .........
18
vii
TABLE OF AUTHORITIES—Continued
Page(s)
W. Wesley Fields et al., The Emergency
Medical Treatment and Labor Act as a
Federal Health Care Safety Net Program,
8 Acad. Emer. Med. 1064 (2001) ...............
6
What is Sepsis?, Ctr. for Disease Control
and Prev. (Aug. 24, 2023), https://www.
cdc.gov/sepsis/what-is-sepsis.html ...........
15
Whitney Arey et al., A Preview of the
Dangerous Future of Abortion Bans—
Texas Senate Bill 8, 387 New England J.
of Med. 388 (2022) ..................................... 14, 15
INTEREST OF AMICI CURIAE
Amici curiae are geographically diverse counties
and cities across the United States that maintain
public health departments, own or operate hospitals or
clinics, or otherwise fund healthcare services for their
residents.1 As local governments, amici are responsible—
both in practice and often by legal mandate—for
protecting the health and wellbeing of their communities.
Many local governments provide direct medical services
focused on serving indigent and other underserved
populations, including reproductive healthcare services
and services to persons who have been, are, or hope to
become pregnant. In addition, local governments often
provide emergency medical transportation and public
health services, operate law enforcement agencies and
jail facilities, maintain public infrastructure, assist
vulnerable children and the elderly, promote economic
security, and respond to public emergencies. Accordingly,
amici have a strong interest in ensuring public safety
and welfare in the medical sphere and beyond.
Amici submit this brief to provide critical context
about the harm to local governments, and the significant and dangerous consequences to the welfare of our
communities, of stripping away EMTALA’s guarantee
of timely emergency care for pregnant patients who
are suffering from emergency medical conditions that
require immediate termination of the pregnancy in
order to stabilize the patient’s condition.
1
Amici are the County of Santa Clara, California; County of
Milwaukee, Wisconsin; Contra Costa County, California; City of
Gary, Indiana; City and County of San Francisco, California; City
of Saint Paul, Minnesota; City of Cincinnati, Ohio; County of
Marin, California; County of Monterey, California; Cook County,
Illinois; County of Los Angeles, California; Harris County, Texas;
and City of New York, New York.
2
SUMMARY OF ARGUMENT
The Emergency Medical Treatment and Labor Act
(EMTALA)2 is a pillar of the national healthcare safety
net. For nearly four decades, it has protected patients
and promoted public health, while ensuring that hospitals
share the responsibility for providing stabilizing care
to all patients suffering from emergency medical
conditions. Allowing states to exempt their hospitals
from EMTALA’s mandate with respect to pregnancyrelated complications that require termination of a
pregnancy would place patients in danger, undermine
public health, and upset the balance that EMTALA
struck with respect to emergency medical services.
Such a ruling would impose additional strain on the
healthcare safety net and would harm local governments
and the communities they serve.
a. Allowing states to block medically necessary
emergency abortions would undermine EMTALA’s goal of
ensuring that hospitals share in the responsibility of
providing emergency medical services to our communities. In addition to depriving individual patients of
medically necessary care, such a ruling would force
safety net hospitals in states that offer comprehensive
emergency medicine, including public hospitals operated
by local governments, to bear the cost of treating
patients whom other hospitals have refused to provide
with critical emergency care. These hospitals would
be forced to reallocate already scarce resources to
provide critical emergency care that should have been
provided to patients in their home state before their
condition deteriorated further. This would further
strain the operations of safety net providers that
already operate with thin financial margins and serve
2
42 U.S.C. § 1395dd.
3
some of the nation’s most vulnerable patient populations.
Such an outcome would contravene the purpose of
EMTALA, putting the same patients that EMTALA
sought to protect at risk and undermining the
operations of critical safety net healthcare providers
that serve the public.
b. Allowing states to prohibit or delay medically
necessary emergency abortions threatens to erode
public trust in healthcare providers to the detriment
of the broader public health and welfare. Patients in
need of emergency abortions would no doubt find their
confidence in the healthcare system shaken if physicians
were allowed—much less required—to withhold medically
necessary stabilizing treatment, thereby forcing patients
to endure harmful and potentially life-threatening
health complications. These dangerous and harmful
medical encounters may also affect the larger community’s relationships with the healthcare system.
Indeed, patients who feel that a relative has received
poor health care tend to report a loss of trust in their
own healthcare providers and the healthcare system.
The harmful consequences of this loss of public trust
in healthcare providers are significant. Mistrust of
healthcare providers contributes to delays in seeking
care and failure to follow medical advice, both of which
can lead to worse healthcare outcomes. Worsened
health outcomes, in turn, can result in more costly and
intensive medical interventions that can have devastating financial repercussions for families. Poor health
outcomes can also negatively affect school attendance,
familial relationships, and worker productivity. In
addition, the increased strain on the social safety net
as a result of the cascading effects of delayed medical
care could interfere with local governments’ ability to
provide broader safety net services.
4
ARGUMENT
As local governments responsible for promoting the
health and welfare of their communities, amici respectfully urge the Court to affirm the district court’s grant
of a preliminary injunction. The district court’s
preliminary injunction barred the State of Idaho from
enforcing the abortion restrictions set out in Idaho
Code section 18-622 to the extent those limitations
conflict with the requirements of the federal Emergency
Medical Treatment and Labor Act (EMTALA). As set
forth in the Brief for Respondent, reversal of the
district court’s order would seriously undermine patients’
ability to receive medically necessary emergency abortions. This, in turn, would expose patients experiencing
dangerous pregnancy complications to significant, potentially life-threatening health repercussions that would
have a harmful ripple effect not only on the patients
themselves, but on the broader community and local
safety net systems upon which our communities rely.
As explained in the amici curiae brief filed by the
American College of Obstetricians and Gynecologists,
if the Court were to hold that EMTALA does not
require hospitals to provide medically necessary abortions
even when doing so is necessary to stabilize a patient’s
condition, patients experiencing serious complications
in Idaho, and in other states that restrict the
availability of medically necessary abortions, would be
forced to either wait while physicians delay medically
necessary and potentially life-saving emergency care,
or to risk interstate travel while in an unstable
medical condition. Neither of these adverse outcomes
serve the purposes for which EMTALA was enacted.
In addition to endangering individual patients,
allowing states to block medically necessary emergency
abortions would undermine EMTALA’s goal of ensuring
5
that hospitals share the responsibility for providing
emergency medical care. Such a decision would force
hospitals that provide comprehensive emergency services,
especially safety net hospitals in states that do not
obstruct medically necessary abortions, to reallocate
scarce public resources to treat out-of-state patients
whose condition may have deteriorated because they
were forced to travel while in an unsafe medical
condition. Given the significant operational and
financial challenges already facing local safety net
healthcare facilities—which deploy limited public
resources to serve vulnerable and high-need members
of the public—these providers can ill-afford to bear the
cost of so-called “patient dumping.”
Finally, allowing states to prevent or delay healthcare
providers from performing medically necessary emergency abortions would threaten to harm public health
more broadly by undermining patients’ trust that the
healthcare system will be responsive to their needs or
the needs of their loved ones. Building and maintaining patient trust is paramount to healthcare providers’
ability to treat patients, encourage healthy behaviors,
and facilitate positive health outcomes for the public.
Without that trust, patients may doubt that they can
obtain the care they need and may, as a result, delay
or altogether forgo seeking critical care. When
segments of the population do not or cannot access
adequate health care, the wellbeing of the entire
community is undermined. And increases in the costs
associated with delayed medical care are likely to limit
local governments’ ability to provide safety net
healthcare services more broadly.
For the foregoing reasons, amici respectfully urge
the Court to affirm the district court’s preliminary
injunction ruling.
6
I. Allowing States to Block Medically
Necessary Emergency Abortions Would
Undermine EMTALA’s Goal of Ensuring
Hospitals
Share
Responsibility
for
Emergency Medical Services.
As set forth above, amici are local governments that
maintain public health departments, own or operate
hospitals or clinics, or otherwise fund healthcare
services for our residents. As entities that help comprise
the fabric of the healthcare safety net, amici have a
strong interest in preserving its safeguards. One of
those safeguards is EMTALA, which requires virtually
all hospitals to provide patients who are experiencing
emergency medical conditions with the stabilizing
care they need.3 Indeed, EMTALA has long required
that emergency departments provide medically necessary
emergency abortion care. Upsetting this well-settled
understanding of EMTALA would weaken the safety
net systems operated by local jurisdiction and place
patients at risk.
3
See H.R. Rep. No. 99-241, pt. 1 at 27 (1985), as reprinted in
1986 U.S.C.C.A.N. 579, 605 (“All participating hospitals with
emergency departments would be required to provide an appropriate medical screening examination . . . to determine whether
an emergency medical condition exists” and “to stabilize the
medical condition or provide treatment for the labor[.]”); see also
W. Wesley Fields et al., The Emergency Medical Treatment and
Labor Act as a Federal Health Care Safety Net Program, 8 Acad.
Emer. Med. 1064, 1064-65 (2001) (“The U.S. emergency medical
care system continues to operate on the basis of universal access
to care for all who seek it, and [emergency departments] play a
vital role as core safety net providers in today’s healthcare
system. As mandated by EMTALA, emergency services are
uniformly available to all . . . . [Emergency departments] have
emerged as perhaps the most visible safety net facilities in the
current health care environment.”).
7
One of the primary reasons Congress passed EMTALA
was to end so-called “patient dumping,” a practice that
places patients in grave danger by depriving them of
critical and time-sensitive emergency care. Traditionally,
patient dumping occurred when a patient sought care
at a private hospital’s emergency department and was
either turned away or transferred to a public safety net
hospital because they were unable to pay.4 In the
mid-1980s, for example, physicians at Cook County
Hospital in Chicago published two articles documenting patient dumping at their facility. Their research
showed that patients who were transferred were twice
as likely to die as those treated at the transferring
hospital; nearly a quarter were transferred in unstable
condition.5 And Cook County was not alone—transfers
had risen precipitously across the country, from New
York to Dallas to California.6
In the wake of these reports, Congress passed
EMTALA. In doing so, Congress determined that
hospitals owe patients a safety net in emergencies.
Though EMTALA applies specifically to hospitals that
participate in Medicare, “this encompasses almost 98%
of all US hospitals.”7 Medicare is a foundational funding
source that accounts for approximately twenty-one
percent of total national health expenditures and is
one of the primary sources of funding in our healthcare
4
See David U. Himmelstein et al., Patient Transfers: Medical
Practice as Social Triage, 74 Am. J. Pub. Health 494, 495-96 (1984).
5
See Joseph Zibulewsky, The Emergency Medical Treatment
and Active Labor Act (EMTALA): What It Is and What It Means
for Physicians, 14 Proc. Baylor Univ. Med. Ctr. 339, 339 (2001).
6
See id.; Rachel Warby et al., EMTALA and Patient Transfers,
StatPearls, Nov. 22, 2023, at 1.
7
See Zibulewsky, supra note 5, at 340.
8
system. In the case of public hospitals operated by
local governments, this funding is critical to ensuring
the hospitals’ ability to offer care to vulnerable members
of the community, and provides a tremendous benefit
to the national healthcare safety net more broadly.
8
The passage of EMTALA further bolstered the
healthcare safety net and protected patients by
making both public and private hospitals part of the
safety net for emergency care. As one senator
explained, EMTALA was meant “to send a clear signal
to the hospital community . . . that all Americans,
regardless of wealth or status, should know that a
hospital will provide what services it can when they
are truly in physical distress.”9 This time-sensitive
emergency care is meant to be provided locally at a
nearby hospital. Indeed, when an ambulance receives
a patient who is experiencing a medical emergency,
they are generally required (subject to certain
exceptions) to transport the patient to the nearest
hospital that can provide the requisite care. In
contrast, a decision permitting States to exempt their
hospitals from the obligation to provide critical
emergency medical care to pregnant patients—
namely, medically necessary abortions—would turn
back the clock and push the obligation to provide
critical care onto the emergency departments of
neighboring states’ hospitals, to the detriment of both
patients and neighboring states’ safety net systems.
8
Centers for Medicare & Medicaid Services, NHE Fact Sheet,
CMS (Dec. 13, 2023), https://www.cms.gov/data-research/statisti
cs-trends-and-reports/national-health-expenditure-data/nhe-factsheet#:~:text=Medicare%20spending%20grew%205.9%25%20to,
29%20percent%20of%20total%20NHE.
9
131 Cong. Rec. 28568 (1985) (statement of Sen. Durenberger).
9
Patients experiencing serious pregnancy complications in Idaho, or in other states that curtail access to
medically necessary emergency abortion, would be
forced to suffer as their health deteriorates, sometimes
irreparably, while physicians delay or forgo emergency
care. In particular, patients with limited means—one
of the key populations EMTALA was enacted to
protect—will be left with no option but to wait while
their emergency medical condition worsens. These
financially vulnerable patients may lack the money to
travel out of state or to secure childcare during their
absence, and they may be unable to afford to miss work
for the extended period required to travel out of state
for emergency care. Inevitably, these patients, whom
EMTALA especially sought to protect, will be turned
away with no recourse.
Patients who are able to seek emergency care out of
state will also face significant health risks as a result
of traveling in an unstabilized medical condition. But
the harm does not end there. The out-of-state safety
net providers that receive these patients will be forced
to divert scarce resource to provide critical emergency
care that should have been provided to patients in
their home state before those patients’ condition
deteriorated further. Public safety net health systems
that offer comprehensive emergency medicine, especially
public hospitals operated by local jurisdictions, can ill
afford to shoulder the cost of out-of-state patient
dumping, which harms patients and safety net
providers alike.
Safety net facilities are “providers of last resort,
providing care to all patients, regardless of their
10
ability to pay.” Many public hospitals primarily serve
low-income Medicaid patients. For instance, in California
in 2021, Medicaid patients “accounted for nearly 60%
of hospitalizations at county hospitals and nearly half ”
at other safety net hospitals that “receive supplemental
funding—compared to about one-third at all other
hospitals.”11 Consequently, public hospitals also serve
a large percentage of Medicaid-covered births.
10
In short, safety net providers fill critical gaps in the
availability of services, support access to care in
underserved communities, and provide a disproportionate share of uncompensated and undercompensated
care, all while operating with razor-thin financial
margins.12 At the same time, safety net providers face
unprecedented hurdles in continuing to deliver highquality care to underserved patients. Even before the
COVID-19 pandemic, acute staffing and resource
shortages loomed.13 In the pandemic’s wake, margins
are thinner and staff shortages more severe.14 These
10
National Association of Counties, Medicaid and Counties:
Understanding the Program and Why It Matters to Counties 11
(2024), https://www.naco.org/resources/medicaid-and-countiesundersta nding-program-and-why-it-matters-counties-0.
11
Shannon McConville & Shalini Mustala, California’s Health
Care Safety Net, Pub. Pol’y Inst. of Cal. (May 2023), https://
www.ppic.org/publication/californias-health-care-safety-net/.
12
See Paula Chatterjee et al., Essential but Undefined —
Reimagining How Policymakers Identify Safety-Net Hospitals,
383 New England J. of Med. 2593, 2593-94 (2020).
13
Daily Briefing: America Deliberately Limited Its Physician
Supply—Now It’s Facing a Shortage, Advisory Bd. (Mar. 18, 2023),
https://www.advisory.com/daily-briefing/2022/02/16/physicianshortage.
14
Patrice Taddonio, Why Safety-Net Hospitals Serving LowIncome People May Be “On the Brink of a Precipice,” PBS (May 18,
2021), https://www.pbs.org/wgbh/frontline/article/safety-net-hosp
11
challenges have hit public hospitals hardest because
they serve a more vulnerable patient population and
deliver more uncompensated or undercompensated care.
Forcing beleaguered safety net providers to shoulder
the cost of providing emergency care for out-of-state
patients who were denied medically necessary emergency
abortions in their home state will only exacerbate
these problems. Public safety net hospitals, many of
which are operated by local governments, will be
forced to provide resource intensive emergency care
that will often be more invasive, expensive, and
complex as a result of the patient’s unstabilized
condition and the delay in care during travel.15 For
example, when patients with certain pregnancy
complications cannot access necessary emergency
abortion services, their risk of sepsis increases.16
Sepsis, which is described in greater detail infra, is the
most expensive reason for a hospitalization: an
average hospital stay for sepsis costs double the stay
itals-struggle-endangers-care-for-low-income-patients/; Assistant
Sec’y for Plan. & Evaluation, Off. Health Pol’y, Impact of the
COVID-19 Pandemic on the Hospital and Outpatient Clinician
Workforce: Challenges and Policy Responses 1, 3-4 (2022),
https://aspe.hhs.gov/sites/default/files/documents/9cc72124abd9e
a25d58a22c7692dccb6/aspe-covid-workforce-report.pdf.
15
See Zibulewsky, supra note 5, at 339; see also New Report:
Costs of Caring for Sicker Patients to Drive Continued Hospital
and Health System Losses Throughout 2021, Amer. Hospital Ass’n
(Sept. 21, 2021) (explaining that patients who put off care during
the pandemic became sicker and required more expensive care),
https://www.aha.org/press-releases/2021-09-21-new-report-costscaring-sicker-patients-drive-continued-hospital-and.
16
L. Lewis Wall & Awol Yemane, Infectious Complications of
Abortion, 9 Open Forum Infectious Diseases, Nov. 23, 2022, at 4.
12
for another diagnosis. Treating patients who have
been denied care at a facility in another state, and now
face major complications like sepsis, will hit public
hospitals particularly hard.
17
For emergency services, all hospitals are supposed
to share the responsibility of providing stabilizing
emergency care. This care is meant to be provided
locally to ensure timely intervention. Removing pregnant
patients in need of emergency abortion care from this
equation will return hospitals to the pre-EMTALA
status quo with respect to these pregnancy-related
medical circumstances. Even worse, it would allow not
just select private hospitals but entire states to deny
patients emergency care and push this responsibility
onto the doorstep of neighboring states’ hospitals
and social safety net systems at a time when the
healthcare safety net is already strained. Meanwhile,
patients who lack the means to seek emergency care
out of state—though theoretically among EMTALA’s
key beneficiaries—will find the protections EMTALA
affords them illusory as they have no choice but to wait
while their emergency condition worsens.
17
Jim O’Brien, The Cost of Sepsis, Ctr. for Disease Control and
Prev. (Sept. 8, 2015), https://blogs.cdc.gov/safehealthcare/the-costof-sepsis/; Jessica T. Lee et al., Trends in Post–Acute Care Use
After Admissions for Sepsis, 17 Ann. Am. Thoracic Soc’y 118, 118
(2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6944346/.
13
II. Allowing States to Prohibit or Delay
Medically Necessary Emergency Abortions
Threatens to Erode Public Trust in
Healthcare
Providers
and
Thereby
Undermine the Public Health and Welfare.
As explained in the amici curiae brief filed by the
American College of Obstetricians and Gynecologists,
denying or delaying the treatment of patients with
severe pregnancy complications has serious consequences
at the individual medical level. Beyond that, it also
threatens to undermine trust in the healthcare system
more broadly, particularly among under-served communities, to the detriment of public health and community
wellbeing. Because local governments play an essential
role in promoting and protecting public health and
welfare, amici have a strong interest in preventing
these harms and, for this additional reason, urge the
Court to uphold the district court’s preliminary injunction.
A. Allowing States to Prohibit or Delay
Medically
Necessary
Emergency
Abortions Will Undermine Patient Trust.
Put simply, forcing physicians to delay or deny
medically necessary abortions to patients suffering
from serious health conditions would undermine patients’
confidence that healthcare professionals are willing
and able to help them. Research shows that patients
who have negative medical experiences or feel betrayed
by medical institutions are more likely to disengage
from healthcare systems and less likely to adhere to
medical advice.18 This would exacerbate existing
medical skepticism and further erode trust in medical
18
Carly Parnitzke Smith, First, Do No Harm: Institutional
Betrayal and Trust in Health Care Organizations, 10 J. Multidisc.
Healthcare 133, 137, 140-42 (2017).
14
practitioners and institutions—trust that is foundational to effective patient care. Furthermore, even
patients who have a high degree of trust in healthcare
providers and systems may find their confidence
irreparably shaken if physicians withhold necessary
medical care or force patients to “get sicker” and
endure potentially life-threatening health complications
before providing needed care.19 For example, in
response to newly-effective abortion restrictions in
some states, some physicians have delayed abortions
for patients who presented with ruptured membranes
prior to fetal viability. Extremely premature rupture
of the membranes of the amniotic sac is a dangerous
pregnancy complication that requires urgent care.
During a typical pregnancy, the membranes will
rupture at or around full term, at which point the
patient will go into labor. However, if the pregnancy is
still in the early stages when the membranes rupture,
the patient may not go into labor. At this point, the
patient faces a serious risk of infection because the
placenta and fetus remain inside the uterus, even
though the pregnancy is failing. Allowing the pregnancy to continue despite the ruptured membranes
puts the pregnant patient’s health in grave danger. If
doctors do not promptly terminate the pregnancy, the
patient is at risk of developing an infection that could
in turn lead to sepsis—a life-threating condition in
which the body’s response to infection causes inflammation and blood clotting that impairs blood flow and
19
See Whitney Arey et al., A Preview of the Dangerous Future
of Abortion Bans—Texas Senate Bill 8, 387 New England J. of
Med. 388, 389 (2022) (describing a patient’s anger and sadness at
having to either “wait[], and . . . potentially get sicker,” or fly to
another state and risk having a medical emergency in transit).
15
can damage vital organs and even lead to death.20
Complications arising from delays in care can also
cause hemorrhaging or scarring of the uterus that
permanently impairs fertility. In some cases, patients
may be forced to undergo a hysterectomy due to the
advanced progression of the infection, preventing
them from being able to get pregnant in the future.
These severe physical harms are compounded with the
psychological distress and trauma that patients will
suffer from being forced, against their wishes and
contrary to their medical providers’ judgment, to carry
a pregnancy that is very unlikely to result in a
successful delivery but continues to cause physical
suffering and threaten their long-term health and
reproductive ability.21
The risk of such trauma and suffering is not
hypothetical. In several instances, due to restrictions
similar to the one at issue here, physicians have
waited until a patient developed a life-threatening
condition before providing care.22 Indeed, in 2022,
20
See Sepsis, Mayo Clinic (Feb. 10, 2023), https://www.mayo
clinic.org/diseases-conditions/sepsis/symptoms-causes/syc-20351
214; see also What is Sepsis?, Ctr. for Disease Control and Prev.
(Aug. 24, 2023), https://www.cdc.gov/sepsis/what-is-sepsis.html.
21
Unnecessarily delaying medically necessary abortions, to the
detriment of patient health and at the risk of their lives, is
contrary to medical ethics in general. See Am. College of Obstet.
& Gyn., Code of Professional Ethics 2 (Dec. 2018). And delaying
care is particularly egregious where the fetus’s development is no
longer compatible with life—including, for example, in many
cases of preterm premature rupture.
22
See, e.g., Arey, supra note 19, at 389; Laura Santhanam, How
Abortion Bans Will Likely Lead to More Deadly Infections, PBS
NewsHour (July 27, 2022, 2:13 PM EDT), https://www.pbs.
org/newshour/health/how-abortion-bans-will-likely-lead-to-moredeadly-infections (physician describing a sharp increase in the
16
Missouri resident Mylissa Farmer was denied an
abortion at two different hospitals—one in Missouri
and one in Kansas—after experiencing a preterm
premature rupture of membranes at around 18 weeks.23
Despite advising Ms. Farmer that her pregnancy was
failing and that her condition could rapidly deteriorate—
resulting in infection, hemorrhage, and potentially
death—healthcare providers refused to provide her
with an abortion because a fetal heartbeat could
still be detected.24 In Ms. Farmer’s words: “It was
dehumanizing. It was terrifying.”25
Ms. Farmer
ultimately traveled to a third state to receive the
abortion she needed—an option that will not be viable
for every patient, whether due to limited financial
means or other reasons.
Ms. Farmer’s experience was not unique. In the
wake of Florida’s 15-week abortion ban, doctors in
Florida refused to perform an abortion or induce labor
for a woman whose water broke five months before her
due date. The doctors instead sent the woman, Anya
number of patients experiencing sepsis or hemorrhage during
pregnancy).
23
See Press Release, U.S. Dep’t Health & Hum. Servs., HHS
Secretary Xavier Becerra Statement on EMTALA Enforcement
(May 1, 2023), https://www.hhs.gov/about/news/2023/05/01/hhssecretary-xavier-becerra-statement-on-emtala-enforcement.html.
24
Id.; see also Anne Flaherty, Feds Say Hospital Broke the Law
by Refusing to Provide Life-Saving Abortion, ABC News (May 1,
2023, 2:32 PM), https://abcnews.go.com/Politics/feds-hospitalsbroke-law-refusing-provide-life-saving/story?id=98990243.
25
Anne Flaherty, Feds Say Hospital Broke the Law by Refusing
to Provide Life-Saving Abortion, ABC News (May 1, 2023, 2:32
PM), https://abcnews.go.com/Politics/feds-hospitals-broke-law-ref
using-provide-life-saving/story?id=98990243.
17
Cook, home.
Ms. Cook then delivered alone in a
bathroom knowing her baby would not be born alive,
and nearly bled to death afterwards despite being
rushed to the hospital.27
26
Without the full protections of EMTALA, residents
of Idaho and other states that severely curtail access
to medically necessary abortions who are or may
become pregnant will be left in a state of uncertainty
about whether healthcare providers will be willing and
able to help them if they find themselves rushed to the
emergency room with a pregnancy complication that
threatens their life or health. Many of those who are
inevitably turned away and refused critical, healthpreserving care will undoubtably find their trust in
our healthcare system devastated.
B. Allowing States to Prohibit or Delay
Medically
Necessary
Emergency
Abortions Will Harm the Broader Public.
The dangerous and harmful medical encounters
discussed above are likely to negatively affect public
health and welfare, including by undermining the
larger community’s relationship with healthcare providers and the healthcare system. Not only patients,
but also their loved ones, may find it difficult to trust
the healthcare system in the future. Indeed, research
shows that patients who feel that a relative has
received poor or inadequate health care tend to report
a loss of trust in their own healthcare providers and
the healthcare system, and are more likely to avoid
26
Caroline Kitchener, Two Friends Were Denied Care After
Florida Banned Abortion. One Almost Died, Washington Post
(April 10, 2023, 6:00 AM EDT), https://www.washingtonpost.
com/politics/2023/04/10/pprom-florida-abortion-ban/.
27
Id.
18
seeking medical care. This ripple effect means that
the negative health repercussions of delaying or
denying medically necessary abortions extend far
beyond those specific incidents and threaten to harm
public health by undermining broader trust in, and
engagement with, the healthcare system.
28
The harmful consequences of this loss of trust are
hard to overstate. Public trust is fundamental to
healthcare professionals’ ability to treat patients,
encourage healthy behaviors, and facilitate positive
health outcomes more broadly. Among other things,
trust in healthcare professionals is associated with
patients engaging in beneficial health behaviors and
reporting higher satisfaction with their health care,
improvement in symptoms, and better quality of life as
it relates to health,29 whereas mistrust of healthcare
providers contributes to delays in seeking care, which
can lead to worse healthcare outcomes.30 Patients
who distrust medical providers are also more likely to
fail to follow the medical advice they are given.31
Undermining confidence in healthcare professionals,
therefore, has serious consequences for the public health.
28
Nao Oguro et al., The Impact that Family Members’ Health
Care Experiences Have on Patients’ Trust in Physicians, BMC
Health Servs. Rsch., Oct. 19, 2021, at 2, 9-10.
29
See Roman Lewandowski et al., Restoring Patient Trust in
Healthcare: Medical Information Impact Case Study in Poland,
BMC Health Serv. Rsch., Aug. 24, 2021, at 2; see also Johanna
Birkhäuer et al., Trust in the Health Care Professional and
Health Outcomes: A Meta-Analysis, Pub. Libr. Sci. ONE, Feb. 7,
2017, at 10.
30
See Thomas A. LaVeist et al., Mistrust of Health Care
Organizations is Associated with Underutilization of Health
Services, 44 Health Servs. Rsch. 2093, 2102-03 (2009).
31
Id. at 2100.
19
But the impact on patients and the broader
community does not end there. Worsened health
outcomes negatively affect many aspects of community
wellbeing beyond physical health. Delays in seeking
out or receiving medical care can result in more costly
and intensive medical interventions. The burden of
increased medical expenses, in turn, can have serious
and destabilizing repercussions for families and
communities. Some families struggling to pay medical
expenses resort to payday lenders or sacrifice necessities
like food and clothing to pay for medical care, and
medical debt is a leading cause of bankruptcy in the
United States.32
Worsened public health outcomes can also negatively
affect important areas such as school attendance and
participation, familial relationships and stress, career
advancement, and worker productivity.33 For example,
children’s frequent illness and doctor’s appointments
can interfere with their school attendance while
simultaneously limiting their parents’ ability go to
work and to progress in their careers. Meanwhile,
parents struggling with serious health complications
may have trouble finding the time or energy to help
their children complete homework or to plan family
bonding activities, while also managing their own
health and potentially strained finances. Each of these
has cascading effects on the wellbeing of families and
32
Consumer Financial Protection Bureau, Medical Debt
Burden in the United States 29-30 (2022), https://files.consu
merfinance.gov/f/documents/cfpb_medical-debt-burden-in-the-un
ited-states_report_2022-03.pdf.
33
Catherine Jane Golics et al., The Impact of Disease on Family
Members: A Critical Aspect of Medical Care, 106 J. Royal Soc. Med.
399, 401-03 (2013), https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC3791092/.
20
communities, which further underscores the importance
of preserving public health and promoting trust in, and
engagement with, the healthcare system. Reversing the
district court’s decision would have the opposite effect.
Finally, declines in public health are likely to result
in more complicated and expensive care—not only in
states that receive patients seeking emergency abortions
after being previously denied care, but even more so in
states that limit access to this important, timesensitive care. Increased medical costs, in turn, are
likely to limit the funding available for local jurisdictions that offer safety net healthcare services to
provide the preventative and primary care services
that help produce better health outcomes for the
public, or to provide other essential public services. As
entities tasked with protecting the public health and
welfare, amici urge the Court to consider how delaying
medically necessary care may impair local governments’
ability to effectively care for and provide safety net
services to their communities.
21
CONCLUSION
For the reasons set forth above, amici respectfully
urge the Court to affirm the district court’s preliminary
injunction ruling.
Respectfully submitted,
SCOTT F. BROWN
Acting Corporation Counsel,
County of Milwaukee
901 N 9th Street, Suite 303
Milwaukee, WI 53233
Attorney for County of
Milwaukee, Wisconsin
BRIAN E. WASHINGTON
County Counsel,
County of Marin
3501 Civic Center Drive
Room 275
San Rafael, CA 94903
Attorney for the County of
Marin, California
LYNDSEY M. OLSON
City Attorney,
City of Saint Paul
400 City Hall & Court House
15 West Kellogg Boulevard
Saint Paul, MN 55102
Attorney for the City of
Saint Paul, Minnesota
EMILY SMART WOERNER
City Solicitor,
City of Cincinnati
801 Plum Street, Room 214
Cincinnati, OH 45202
Attorney for the City of
Cincinnati, Ohio
TONY LOPRESTI
County Counsel,
County of Santa Clara
KAVITA NARAYAN
MEREDITH A. JOHNSON
RACHEL A. NEIL
Counsel of Record
70 West Hedding Street
East Wing, Ninth Floor
San José, CA 95110
(408) 299-5900
rachel.neil@cco.sccgov.org
Counsel for Amici Curiae
THOMAS L. GEIGER
County Counsel,
Contra Costa County
Administration Building
1025 Escobar St., 3rd Fl.
Martinez, CA 94553
Attorney for Contra Costa
County, California
MEGAN HONINGFORD
Assistant State’s Attorney
ADVICE, TRANSACTIONS, &
COMPLEX LITIGATION UNIT
COOK COUNTY STATE’S
ATTORNEY’S OFFICE
500 Richard J. Daley Center
Chicago, IL 60602
Attorney for Cook County,
Illinois
22
RODNEY POL, JR.
City Attorney,
City of Gary
401 Broadway Suite 104
Gary, IN 46402
Attorney for City of Gary,
Indiana
CHRISTIAN D. MENEFEE
Harris County Attorney
JONATHAN G. C. FOMBONNE
Deputy County Attorney and
First Assistant
TIFFANY S. BINGHAM
Managing Counsel
HARRIS COUNTY ATTORNEY’S
OFFICE
1019 Congress, 15th Floor
Houston, Texas 77002
Attorneys for Harris County,
Texas
SUSAN K. BLITCH
Acting County Counsel,
County of Monterey
168 West Alisal Street
3rd Floor
Salinas, CA 93901
Attorney for County of
Monterey, California
March 28, 2024
DAWYN HARRISON
County Counsel,
County of Los Angeles
JON SCOTT KUHN
STEVEN DE SALVO
500 W. Temple Street
Los Angeles, CA 90012
Attorneys for the County of
Los Angeles, California
DAVID CHIU
City Attorney
City Hall Room 234
One Dr. Carlton B. Goodlett Pl.
San Francisco, CA 94102
Attorney for the City and
County of San Francisco,
California
HON. SYLVIA O. HINDS-RADIX
Corporation Counsel,
City of New York
100 Church Street
New York, New York 10007
Attorney for City of New York,
New York
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.