Chapter 2.A.1: The Duty to Accept Patients

Legislative Mandates for Care

In Harris v. McRae, 448 U.S. 297 (1980), an abortion funding case, the Court addressed a nonconstitutional theory for compelling government funding of health care. States that participate in Medicaid are, generally speaking, required to fund most medically necessary forms of treatment. Beal v. Doe, 432 U.S. 438, 444 (1977). Although McRae found this statutory requirement to be inapplicable to abortions, in other cases the medical necessity mandate has proved to be an effective tool for obtaining Medicaid coverage. Pittman v. Secretary, Florida Dept. Health & Rehab. Services; 998 F.2d 887 (11th Cir. 1993) (requiring coverage of a liver-intestine transplant for a child); Rush v. Parham, 625 F.2d 1150 (5th Cir. 1980) (requiring funding for sex change operations in certain circumstances). However, there is no statutory requirement that Medicaid be funded at a level sufficient to cover all people who need it. See Chapter 8.D for additional discussion.

EMTALA and Abortion Law

What happens when an emergency need for abortion for a patient in a state with restrictive abortion laws? In some states, the emergency exception to an abortion prohibition may be narrower than the definition of a medical emergency under EMTALA. The Biden Administration issued an executive order on the duty under EMTALA to perform an abortion when needed to stabilize the patient’s condition. The order also stated that as a federal law, EMTALA would trump conflicting state law. In Moyle v. Idaho, 144 S. Ct. 2015 (2024), the Supreme Court preserved a lower court stay of Idaho’s abortion ban when a pregnant patient has an emergency need for an abortion. In the case, further proceedings will decide whether EMTALA’s duty to provide care overrides the Idaho statute.

Further Reading

On EMTALA and its role in the health care system, see Russell Korobkin, Determining Health Care Rights from Behind a Veil of Ignorance, 1998 U. Ill. L. Rev. 801; Paul T. Menzel, Justice and Fairness, 40 J.L. Med. & Ethics 582 (2012); Sara Rosenbaum, The Enduring Role of the Emergency Medical Treatment and Active Labor Act, 32 Health Aff. 2075 (2013); Sara Rosenbaum et al., EMTALA and Hospital “Community Engagement,” 53 Buff. L. Rev. 499 (2005); Karen Rothenberg, Who Cares? The Evolution of the Legal Duty to Provide Emergency Care, 26 Hous. L. Rev. 21 (1989); Dana E. Schaffner, Note, EMTALA: All Bark and No Bite, 2005 U. Ill. L. Rev. 1021; Lawrence E. Singer, Look What They’ve Done to My Law, Ma: COBRA’s Implosion, 33 Hous. L. Rev. 113 (1996); Annot., 104 A.L.R. Fed. 166.

On the duty to stabilize, see Mark A. Hall, The Unlikely Case in Favor of Patient Dumping, 28 Jurimetrics J. 389 (1990) (“In the great majority of cases, the federal standard will do nothing to prevent patient dumping. . . . Even for those patients who do require stabilization prior to transfer, the federal law will result only in a delay in the transfer.”); Kenneth R. Wing & John R. Campbell, The Emergency Room Admission: How Far Does the “Open Door” Go?, 63 U. Det. L. Rev. 119 (1985); Will Jay Pirkey, Shameful Practice, 39 L.A. Law. 20 (July/Aug. 2016).

On the ethical and financial concerns with undocumented immigrants, see Maya Babu & Joseph Wolpin, Undocumented Immigrants, Healthcare Access and Medical Repatriation Following Serious Medical Illness, 3 J. Health & Life Sci. L. 83 (2009); Janet L. Dolgin & Katherine R. Dieterich, When Others Get Too Close, 19 Cornell J.L. & Pub. Pol’y 283 (2010); Svetlana Lebedinski, EMTALA: Treatment of Undocumented Aliens and the Financial Burden It Places on Hospitals, 7 J.L. Soc’y 146 (2005-2006); Jennifer M. Smith, Screen, Stabilize, and Ship: EMTALA, U.S. Hospitals, and Undocumented Immigrants, 10 Hous. J. Health L. & Pol’y 309 (2010); Michael J. Young & Lisa Soleymani Lehmann, Undocumented Injustice, 370 New Eng. J. Med. 669 (2014).