Freeman Hospital the first confirmed federal investigation of denied emergency abortion

By Rudi Keller

Missouri Independent

President Joe Biden’s administration told hospitals in July they must provide emergency abortions when necessary even in states with strict bans in place.

And here in Missouri, a Joplin hospital is apparently the first in the nation to be investigated for possibly violating federal law by telling a woman experiencing an emergency that she needed to terminate her pregnancy to protect her health but that the abortion could not take place in the state.

The law, the Emergency Medical Treatment and Labor Act, was passed in 1986 to block hospitals from sending patients who could not pay for treatment to other facilities. A hospital that accepts Medicare must provide screening and stabilizing treatments to anyone who seeks care in their emergency departments.

Investigations are only authorized after a complaint. The woman who was denied an abortion, Mylissa Farmer of Joplin, told The Independent on Tuesday that she wasn’t the source of the complaint.

“I have not filed complaints or initiated any investigation,” Farmer said.

And while her attorney says she doesn’t know the origin of the complaint, she hopes the investigation shows what happened internally as the hospital was considering how to handle Farmer’s case.

Farmer was almost 18 weeks pregnant when her water broke, according to a Springfield News-Leader article published Oct. 14. After advising her that she would lose the pregnancy before the fetus was viable, her doctor told her he could not perform the abortion.

Farmer, on her own, found treatment at a clinic in Granite City, Illinois.

“What happened to our client Mylissa is devastating and it shouldn’t happen to anyone in Missouri or any other state,” said Alison Tanner, Farmer’s attorney. “We hope that any investigation into what happened to Mylissa will bring clarity and justice to her and others who live in the state.”

The highest-profile controversy over Missouri’s law making most abortions illegal is wrapped up in politics of this year’s U.S. Senate race. Democratic Senate candidate Trudy Busch Valentine started running an ad featuring Farmer on Oct. 20. In it, Farmer says she blames Attorney General Eric Schmitt, Valentine’s Republican opponent in Tuesday’s election, for her doctors denying her an emergency abortion.

The same day the ad started airing around the state, Schmitt’s attorney, Ed Greim, sent letters to stations calling it defamatory and threatening possible legal action.

And Oct. 20 is also the day the complaint about Farmer’s treatment was received and an investigation was authorized.

Because the investigation followed quickly on the release of the ad and Schmitt’s protest, and because the nature of the investigation wasn’t initially known, Democrats worried it was retaliation for the ad by the state’s Republican administration.

House Democratic Leader Crystal Quade of Springfield filed Sunshine Law requests demanding communications between Schmitt, Gov. Mike Parson and the health department.

Federal law for investigations makes the state health department the fact-finding agency. But the decision to initiate an investigation and a final say on whether it finds violations is the responsibility of the federal Centers for Medicare and Medicaid Services, also known as CMS.

Lisa Cox, spokeswoman for Missouri’s health department, confirmed in an email to The Independent that the complaint was received Oct. 20 and the investigation was authorized that day.

Material provided to The Independent by CMS states that investigations only occur after complaints.

Complaints can be based on “credible information from a variety of sources, which may include media reports, patients, family members, facilities, or staff,” the guidance states.

To file complaints, CMS directs the public to their state agency overseeing hospitals. In Missouri, that is the state health department. Under regular procedure, the department would field the complaint and pass it on to CMS to determine whether an investigation is warranted.

Cox said she cannot release whether the complaint was received through the regular process or if it was received directly by CMS.

While the case is roiling the Missouri political scene, it is also being viewed as a test of how strongly the Biden administration will enforce the July guidance.

The guidance says a doctor can’t be prosecuted under state laws when an abortion is necessary as “stabilizing treatment.”

“When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than (the Emergency Medical Treatment and Labor Act’s) emergency medical condition definition — that state law is preempted,” the guidance states.

In Missouri, abortion is only permitted in a medical emergency, which state law defines as necessary to save the patient’s life or “for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”

Health care providers who violate the ban can be guilty of a class B felony, which can result in five to 15 years in prison, and suspension or revocation of their medical license.

The language in the law leaves a lot of uncertainty for doctors treating patients as problems develop during pregnancy, Jeannie Kelly, a maternal fetal medicine specialist at Washington University in St. Louis, told The Independent in July.

“I am worried that people will sit on very sick, pregnant patients longer than they should, in fear of being prosecuted,” Kelly said soon after the Dobbs decision. “This isn’t just our licenses, this isn’t malpractice. This is a criminal felony charge with jail time.”

The guidance, coming less than three weeks after the Supreme Court ruled that the U.S. Constitution does not recognize a right to abortion, was immediately challenged by Texas. In Idaho, the federal government sued the state over a law that only allows abortions to save a woman’s life.

Federal courts have issued conflicting rulings on whether the guidance provides the protection from prosecution it promises.

The guidance was challenged by Texas and two anti-abortion medical organizations. On Aug. 23, Judge James Hendrix of the Northern District of Texas ruled the administration had not followed proper procedures for issuing the guidance.

Hendrix also wrote that the law doesn’t do what the guidance states. He blocked CMS from enforcing it in Texas or against members of the two organizations.

“Since the statute is silent on the question, the guidance cannot answer how doctors should weigh risks to both a mother and her unborn child,” Hendrix wrote. “Nor can it, in doing so, create a conflict with state law where one does not exist. The guidance was thus unauthorized.”

In Idaho, the federal government sued the state. On Aug. 24, a day before a restrictive abortion law was to take effect, Judge B. Lynn Winmill blocked it from being used to prosecute doctors acting in an emergency.

“It’s not about the bygone constitutional right to an abortion,” Winmill wrote. “This court is not grappling with that larger, more profound question. Rather, the court is called upon to address a far more modest issue—whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation. It does.”