After Dobbs v. Jackson Women’s Health Organization, states have enacted criminal abortion bans with only narrow and ambiguous exceptions, resulting in dangerous treatment delays for pregnant patients experiencing emergency medical complications. Abortion-access advocates have turned to the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute that imposes a duty on hospitals to stabilize emergency conditions, arguing that EMTALA preempts restrictive state laws. The ensuing preemption debate has paid little attention to a key aspect of the statute: a provision specifying that the treatment obligation applies only to care “within the staff and facilities available at the hospital,” which reveals that EMTALA’s reach turns on hospitals’ own choices about which services to make available. This Note raises that even if EMTALA preempts state abortion bans, this statutory carve-out enables hospitals to adopt categorical anti-abortion policies to evade EMTALA’s requirements, threatening abortion access even in life-threatening medical emergencies.
This Note argues that courts should recognize an affirmative obligation under EMTALA—which necessarily follows from the statute’s text and structure—that requires hospitals to keep standard emergency treatments available and to provide specialized treatments whenever they have the medical capability to do so. By distinguishing standard from specialized care using objective medical criteria (not state restrictions, and not hospital policy) courts can prevent administrators from adopting “unavailability” policies to avoid federal obligations. This interpretation simultaneously vindicates EMTALA’s core anti–patient-dumping purpose and avoids creating a de facto federal malpractice regime. Properly understood, EMTALA contains a previously unarticulated cause of action that prevents hospitals from eliminating emergency treatment options, and thereby ensures access to life-preserving abortion care in emergency medical situations.