Business
Column: Antiabortion agitators are trying to cripple a lifesaving federal healthcare law
Here’s how the legal departments of two hospitals, legislators in two states and even the Supreme Court turned a pregnancy emergency for Mylissa Farmer into a life-threatening nightmare.
Farmer, 41, was 18 weeks into her pregnancy when her water broke prematurely. Her doctor instructed her to go to her local hospital in Joplin, Mo.
There, the hospital’s labor and delivery doctors determined that she had no amniotic fluid left. Her baby had “‘zero’ chance of survival” and she risked infection, blood loss and even death. The doctors advised her that they could help her undergo an “inevitable miscarriage,” or she could wait, at risk to her life.
Obstetricians in Idaho live in constant fear…. Idaho’s doctors have been warned that they are being tracked and scrutinized and they should fear prosecution for providing an abortion under any circumstances — even when medically necessary.
— Idaho Coalition for Safe Healthcare
She chose the former, and then the hospital’s legal department stepped in. Although Missouri’s antiabortion law has exceptions when continuing a pregnancy might cause the mother’s death or “irreversible physical impairment,” the lawyers determined she was not quite there yet.
The doctors advised Farmer to go out of state, but the only hospital capable of handling her condition was in Kansas, which was then in the thick of a political campaign over a proposed antiabortion constitutional amendment.
She arrived at University of Kansas Hospital on Aug. 2, 2022, the very day the vote was taking place. There the doctors offered either to induce labor or end her pregnancy surgically. Then that hospital’s lawyers stepped in. They forbade the doctors to provide any treatment at all, having ruled, according to a doctor, that it “was too risky in this political environment.” Three days later, she reached a clinic in Illinois that performed the necessary treatment.
Mylissa Farmer’s experience matches those of countless other women whose healthcare has been compromised by antiabortion state laws since 2022, when the Supreme Court in its so-called Dobbs decision overturned the guarantee of abortion rights established by Roe vs. Wade in 1973.
But there’s more to her case. The refusal by two major hospitals to treat her emergency condition violated federal law — the Emergency Medical Treatment and Labor Act of 1986, known as EMTALA.
The law, which was drafted to stop hospitals from “dumping” emergency patients without insurance by denying them treatment, requires all hospitals receiving Medicare funds — pretty much all hospitals — to provide all emergency room patients with the treatment required to “stabilize” their conditions before transferring them or sending them home.
Investigations by Medicare inspectors last year concluded that the Joplin hospital and University of Kansas Hospital violated EMTALA when they released Farmer without providing the requisite treatment. The penalties run up to $50,000 per incident and the termination of the hospitals’ Medicare contracts, but no actions have been announced.
There’s no exception in EMTALA when the required emergency treatment is an abortion. And that has made EMTALA the newest target of antiabortion agitators and politicians. They claim that the Biden administration is using the federal law to promote or even mandate abortions in all cases, which is false.
The claim, however, has caught the eye of the Supreme Court, which has scheduled oral arguments April 24 in a case involving Idaho’s antiabortion law and its manifest conflict with EMTALA.
The court’s decision to take up the case alarmed abortion rights advocates when it was announced on Jan. 5. It looms even larger now: The court has signaled, though not guaranteed, that it will reject a right-wing challenge to the Food and Drug Administration’s approval of mifepristone, the key drug in medication abortions, but the Idaho case could give its conservative majority another crack at strengthening state antiabortion policies nationwide.
“There was a lot of press around the mifepristone lawsuit,” says Michelle Banker of the National Women’s Law Center, which is providing Farmer with legal representation. “This is a bit of a sleeper case.”
The case is rooted in an advisory issued by Medicare authorities two weeks after the Dobbs decision overturned Roe vs. Wade. It emphasized to doctors and hospitals that when a pregnant woman arrived at an emergency room with a condition that required an emergency abortion, “the physician must provide that treatment.”
When a state law prohibited abortion and didn’t include an exemption when the life of the mother was threatened, the advisory said, “that state law is preempted ” by the federal law. (Boldfaced emphases in the original.)
Antiabortion advocates instantly took up arms against the advisory. They scurried to federal court in Lubbock, Texas, which has a single active judge, Trump appointee James Wesley Hendrix, who obligingly blocked it with a permanent injunction. The government’s appeal went to the notoriously right-wing U.S. 5th Circuit Court of Appeals, which upheld the injunction.
The Texas case hasn’t made it yet to the Supreme Court. It was outrun by the Idaho case, in which the federal government moved to block Idaho’s antiabortion law to the extent it conflicted with EMTALA.
The conflict, as the government points out, is that the law requires doctors to perform an emergency abortion if necessary to prevent a patient’s condition from deteriorating or to protect her from potentially severe or permanent injury. Idaho law forbids an abortion unless it’s necessary to avert a patient’s death. Doctors caught in this vise are in effect being told that they must allow a pregnant woman’s condition to deteriorate until she is near death before they can act.
It wasn’t entirely surprising that Idaho would become the battleground for the issue. The state is doing very well in the race to enact the most goonishly malevolent antiabortion policies. Its abortion law criminalizes abortion at all stages of pregnancy, with narrow exceptions for cases in which continuing a pregnancy would threaten the mother’s life.
Idaho law also makes it a felony to help a minor leave the state for an abortion. (A federal judge has temporarily blocked the so-called abortion trafficking law while a lawsuit challenging its constitutionality proceeds.)
The state has claimed that its abortion law makes it a felony for a healthcare provider to refer a patient for an abortion out of state. (Also blocked, for now, by a federal judge.) Another state law exposes professors at Idaho public universities with jail terms of up to 14 years for teaching, discussing, or writing about abortion.
Put all that together, and a ruling that it can flout federal law to protect its antiabortion credentials would be right up Idaho’s alley.
In making its case, Idaho asserts that after the Dobbs decision the Biden administration “reinterpreted” EMTALA “to create a nationwide abortion mandate” — a mandate the administration only “discovered” nearly 40 years after EMTALA’s enactment.
As the government points out, however, the mandate was always within EMTALA; it never had to be spelled out because the right to abortion became the law of the land via Roe vs. Wade 13 years before EMTALA was enacted. Until Dobbs, the role of abortion as an emergency treatment almost never came under question.
Antiabortionists maintain that Dobbs “caused a sea change in the law,” as 5th Circuit appellate judge Kurt D. Englehardt, another Trump appointee, wrote for the three-judge appeals panel upholding the Texas injunction.
That was a cute bit of legerdemain. EMTALA didn’t change as a result of Dobbs — it was healthcare laws in red states that changed to outlaw abortion. “It has always been the case that EMTALA has been understood to require abortion care when that’s necessary to stabilize a patient’s medical condition,” Banker told me. “The only thing that’s new is that Roe vs. Wade has been overturned.”
Indeed, according to a friend-of-the-court brief filed by six former Medicare administrators and former Health and Human Services Secretary Donna Shalala, who served under both President Bush as well as Presidents Clinton and Obama, Medicare repeatedly issued public guidance stressing that abortion should be considered appropriate emergency treatment when warranted, even before Dobbs.
Idaho, like its apologists in the right-wing fever swamp, maintains that EMTALA “merely prohibits emergency rooms from turning away indigent patients with serious medical conditions” and doesn’t mandate “any specific type of medical treatment, let alone abortion.”
This is a crabbed and mendacious interpretation of the law. It’s a cynical attempt to conflate the problem that prompted Congress to act — hospitals were turning away emergency patients without insurance, a process known as “dumping” — with the much broader law Congress enacted.
EMTALA explicitly protects “any individual” who presents at an emergency room, regardless of their financial or insurance situation. Hospitals aren’t even allowed to inquire about the patient’s financial or insurance status if that would delay examination or treatment.
Idaho’s interpretation suggests that hospitals could simply keep indigent patients in their corridors, untreated, until they wasted away, without violating EMTALA. That’s not what the law says. It explicitly mandates that hospitals “provide either … such treatment as may be required to stabilize the medical condition” or transfer the patient to another facility that can provide the treatment — as long as the transfer itself won’t harm the patient.
What does “stabilize” mean? The law defines the term as meaning that “no material deterioration of the condition” would result from discharging or transferring the patient. It also defines an “emergency medical condition” as one that, without treatment, would jeopardize “the health of the individual,” or cause “serious impairment to bodily functions” or to any organ or body part.
Far from ignoring pregnancy issues, EMTALA has always explicitly covered women presenting with a pregnancy emergency. In those cases, the law says, the hospitals are bound to provide treatment that protects “the health of the woman or her unborn child.”
The friend-of-the-court briefs piling up on the Supreme Court’s EMTALA docket include several outlining the horrific moral and legal trap facing doctors caught between EMTALA and antiabortion state laws.
“Obstetricians in Idaho live in constant fear,” states a brief filed by a coalition representing 678 Idaho doctors and other medical professionals. “Always at the back of their minds is the worry that a pregnant patient will arrive at their hospital needing emergency care that they will not be able to provide.”
Under Idaho law, doctors face prison terms of up to five years and the loss of their medical licenses for following medical protocols unless “the patient is face-to-face with death.” The federal and state laws are totally irreconcilable: Doctors confronted with an emergency pregnancy, the brief says, have the choice of complying with EMTALA and thus risking a stiff prison term and the end of their careers, or complying with state law and thus risking their patient’s health or even causing her death.
What’s worse, “the culture of fear surrounding Idaho’s abortion laws has only exacerbated the struggle,” the brief says. “Idaho’s doctors have been warned that they are being tracked and scrutinized and they should fear prosecution for providing an abortion under any circumstances — even when medically necessary.”
Is there any mystery why OB/GYNS are leaving Idaho by the score? Half of the state’s 44 counties have no practicing obstetricians at all.
A solution, albeit a modest one, to the confusion over the responsibilities of obstetricians in antiabortion states would be for the Supreme Court to clarify that federal law prevails when it runs up against a more restrictive state law. Making that clear in Idaho would send a signal to Texas, Missouri and other states that a mother’s life and health can’t be legislated away.
The EMTALA case gives the Supreme Court an opportunity to uphold science and morality on women’s reproductive healthcare, as it appears to be preparing to do on mifepristone. But what if it follows that case by allowing states to sentence pregnant women to substandard emergency care?
Business
Commentary: How right-wing anti-transgender attacks led to a Supreme Court ruling upholding sex discrimination
At the Supreme Court, the unfounded fear of boys masquerading as girls in youth sports rolled the clock back on gender equality.
On the surface, the Supreme Court’s June 30 opinion upholding state laws barring transgender girls from women’s and girl’s sports teams looks like a victory for women’s rights.
The 6-3 opinion by Justice Brett M. Kavanaugh certainly presents itself that way. “Females and males have inherent physical differences relevant to athletic performance,” Kavanaugh wrote. “Therefore, in contact sports, forcing female athletes to compete against males can create significant safety risks.” He also asserted that “forcing female athletes to compete against males can undermine competitive fairness.”
The ruling applied to prohibitions enacted in Idaho and West Virginia against “biological” males’ participation on women’s teams in public schools. Federal judges in both states overturned the bans. The Supreme Court majority restored them. The ruling essentially upholds similar bans enacted in 25 other states.
There was no record of any transgender person participating in school sports in the State, let alone any ‘problem’ with transgender students … creating unfair competition or unsafe conditions.
— Justice Sonia Sotomayor, demolishing the Supreme Court’s argument in favor of banning transgender girls from girl’s sports
Kavanaugh, like Donald Trump and others in the anti-transgender camp, maintained that one’s gender is an immutable fact of life, established even before birth.
Anything else, Trump stated in an executive order he issued on inauguration day 2025, could only be the product of “gender ideology extremism.” The U.S., his order stated, recognizes “two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.” That’s a “biological truth,” he declared.
In his own version of this overconfident and factually insupportable conclusion, Kavanaugh wrote: “As all agree, females and males have inherent physical differences relevant to athletic performance.”
Science recognizes that some people are “born with sex traits that don’t fit into typical male or female patterns,” to cite a discussion on the Cleveland Clinic web page on the topic “intersex.” The condition “may involve chromosomes, hormones, reproductive organs or genitals.”
From a psychological standpoint, medical science recognizes “gender dysphoria” as a real condition often requiring counseling and medical intervention such as the use of puberty blockers and hormones to stave off the development of secondary sex characteristics until the condition can be resolved.
No one disputes that there are physical differences between the sexes. Few would dispute that on average or even at the median, males may be bigger and more powerful than females, or that in certain contact sports the difference may be telling and on occasion dangerous.
But that’s not the same as asserting that the physical differences between males and females invariably mean that men will invariably prevail over women in all competitions or that their participation will endanger women.
The International Olympic Committee — in a policy statement Kavanaugh cited incompletely — says that in “most running and swimming events,” males have a 10% to 12% advantage over women. That’s a range that would accommodate the full spectrum of outcomes — transgender females win, cisfemales win, they tie. (The “cis” prefix denotes those living consistent with their birth gender.)
West Virginia and Idaho addressed this ambiguity by banning transgender women from all girls’ teams. So under their rules transgender girls can’t play football or soccer with cisgirls. But what’s the argument in favor of banning them from the 100-yard dash, or cross-country track, or diving, or archery?
But something else is going on here. The Supreme Court’s ruling was almost preordained, given the years-long campaign by conservatives to demonize transgender individuals as if they’re members of an alien species.
It will be recalled that during his presidential campaign, Trump spun a despicable fantasy in which children were kidnapped in school and secretly subjected to sex-change operations.
Trump’s executive order wiped out policies aimed at protecting transgender adults from discrimination. He moved to outlaw gender-affirming medical therapies for anyone under 19 by cutting off federal funding for healthcare institutions that provide such care.
He banned transgender individuals from serving in the military and ordered federal prison officials to move transgender inmates into the general populations consistent with their birth genders, which exposes them to physical assault. (Federal Judge Royce Lamberth of Washington, D.C., has blocked the government from transferring three transgender women into the male prison population or terminating their hormone treatments.)
I wrote during Trump’s first term, when his anti-transgender policies were still gestating, that the goal was to show that “one can target any community, as long as it doesn’t have a strong political voice or political power. These are the actions of bullies and cowards, pretending to be strong.”
Last year, the Supreme Court struck its first blow against transgender rights by upholding a Tennessee law banning transgender care, including puberty blockers and hormone therapy, for minors. Similar laws have been enacted in 25 other states. The majority in that ruling by Chief Justice John G. Roberts Jr. was identical to the one in the June 30 ruling — Roberts, Kavanaugh, and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett.
Who are the targets of this ideological campaign? They number only about 1.6 million U.S. adults, or one-half of 1% of the U.S. population. About 300,000 adolescents ages 13 to 17, or 1.4%, identify as transgender, according to a study by UCLA School of Law.
In West Virginia, as Justice Sonia Sotomayor observed in her dissenting opinion, “there was no record of any transgender person participating in school sports in the State, let along any ‘problem’ with transgender students … creating unfair competition or unsafe conditions.”
In endorsing the flat bans directed at transgender women in Idaho and West Virginia, Kavanaugh argued that any attempt to implement case-by-case judgments of students’ requests to join sports teams inconsistent with their biological gender would create “an enormous practical and administrability problem.”
Is that so? That wasn’t the case in Maine, where the annual K-12 population is more than 170,000. There, a committee was charged with determining whether a student’s participation in a sport consistent with their gender identity but inconsistent with their biological sex would “result in an unfair athletic advantage” or present a risk of injury to others. The committee held 56 hearings from 2013 through 2021, or an average of seven per year. During the entire time span, only four involved transgender girls. (The outcome of those hearings couldn’t be learned.)
It was Maine’s policy, one might recall, that provoked a confrontation between Trump and Maine Gov. Janet Mills at the White House last year, when Trump threatened to withhold federal funding from the state unless it barred transgender students from competing on women’s sports teams. “We’ll see you in court,” Mills snapped.
Whether the Idaho and West Virginia laws genuinely protect girls from unfair competition is questionable. (The Idaho law is styled the “Fairness in Women’s Sports Act.”) In practice, the laws may subject women in public schools to “invasive sex verification procedures,” as educational expert George Theoharis of Syracuse University wrote after the court ruling.
They’re also based on a retrograde view of women as fragile creatures needing men’s protection, Theoharis wrote — “the same logic that has historically been used to justify excluding women from making their own healthcare decisions and girls from rigorous math and science; that physically demanding work is simply beyond them.” (There don’t appear to be any state laws barring transgender women from competing in men’s sports.)
Becky Pepper-Jackson, the plaintiff in the West Virginia case, in which she is identified only as B.P.J., is the only transgender girl who sought to join girl’s teams — track and cross-country — in the state. That was in 2021, just after West Virginia passed its law and she was about to enter sixth grade. She didn’t appear to pose any competitive risk to others on the track and cross-country teams she applied to join — her lawyers told the Supreme Court that on those no-cut teams, she “came in near the back.”
Anyway, she had not gone through male puberty, which theoretically might have endowed her with a competitive advantage, because she had been taking puberty blockers and female hormones.
Thanks to the court’s ruling, Sotomayor observed in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, West Virginia can deny Becky access to school sports “because it thinks they have an inherent athletic advantage, even if the facts show that they do not.”
B.P.J., Sotomayor wrote, “cannot practice on girls’ teams, even if she would not take anyone’s spot in an eventual competition, even if everyone who tries out for the team makes it, and even if having the chance to participate could aid immensely in treating B. P. J.’s gender dysphoria.”
So whose interest was really protected by the Supreme Court?
An Orange County real estate investor accused of criminally defrauding an Arizona bank of nearly $100 million pleaded not guilty Monday and remains in custody.
Mahender Makhijani, 44, of Corona del Mar — who also was ordered by an arbitrator to pay $1.34 billion in a separate civil fraud case — was arraigned in Santa Ana federal court on two charges.
He is accused of bank fraud and making a false statement to a bank in a June 8 case involving a $100 million real estate loan made by Phoenix-based Western Alliance Bank. He was taken into custody on June 10.
Makhijani is accused of providing bogus collateral for the October 2024 loan now in default. In a civil lawsuit, Western Alliance said the outstanding balance as nearly $99 million.
Prosecutors say he falsified title insurance policies that showed the bank would have a first lien on the underlying collateral if the loan went bad, when in fact it did not.
A trial was set for August 11 before U.S. District Judge David O. Carter in Santa Ana.
Michael Schachter, his criminal defense attorney, did not respond to messages seeking comment.
In the civil case, an arbitrator in May ordered Makhijani to pay Laguna Beach real estate mogul Mohammad Honarkar $1.34 billion after ruling he had fraudulently induced him into a 2021 joint venture — and then wrested control and lost to creditors more than two dozen properties Honarkar had owned.
Makhijani has not been criminally charged in that case, but prosecutors alleged in an affidavit in support of the bank fraud charges that he used “force and threats” in his dealings with Honarkar and others — including taking over the landmark Hotel Laguna in 2023 that Honarkar was renovating.
Prosecutors sought to hold Makhijani without bail after his arrest.
The affidavit noted he is a legal Indian immigrant with a home and bank accounts in that country, has access to private jets and threatened to “run away” if caught in a difficult situation.
The request was denied and he was granted $500,000 bail.
However, Makhijani remains in custody after a hearing sought by prosecutors last month before Magistrate Judge Autumn Spaeth.
The judge declined to accept a $450,000 cashier’s check submitted by a Makhijani associate for the bail, finding insufficient proof the source of the funds was legitimate, according to court records.
Makhijani is not prominent outside Orange County real estate circles, but he established a thriving distressed-assets business over the last decade that attracted prominent Southern California real estate investors.
Prosecutors said it paid for a lifestyle that included two multimillion-dollar homes in Corona del Mar, a luxury apartment in Newport Beach and various luxury vehicles.
As of last month, prosecutors had not fully traced his assets, which they believe are not held in his name and some of which may be in India.
The businessman employed an array of shell companies and strawmen to sign documents on his behalf, and to stand in for him as operators of his companies, according to the affidavit.
Makhijani told an associate he took extra precautions because wanted to insulate himself from litigation and that “they were sharks in the distressed world who took advantage of people,” the affidavit stated.
Business
Many indie festival films struggle to get distribution. Alamo Drafthouse is trying to change that
Dine-in movie theater chain Alamo Drafthouse Cinema is launching a new initiative to show unreleased independent films that had successful festival runs, a move that comes as specialty films have struggled to gain distribution.
The Alamo Exclusives program, announced Wednesday, will give limited theatrical runs to films that showed at festivals including Sundance, the Toronto International Film Festival, Tribeca Festival and South by Southwest festival, as well as Alamo’s own Fantastic Fest.
The idea is to help showcase films that received critical acclaim, but did not secure distribution or acquisition deals. The chain will not acquire these films, but instead will enter into agreements with filmmakers to exhibit their films on Alamo Drafthouse screens. By showing these films to audiences on the big screen, these films could get the momentum they need for further opportunities.
The program’s first film will be the documentary “Butthole Surfers: The Hole Truth and Nothing Butt,” which debuted last year at South by Southwest and chronicles the history of the punk rock band.
The film will be shown in Alamo Drafthouse theaters for a limited time later this summer.
The Austin-based chain, which is owned by Sony Pictures, has a long history of curating indie films for its audiences, giving Alamo Drafthouse confidence that its viewers want to see these kinds of movies, company chief executive Michael Kustermann said in a statement.
“Time and again, they’ve shown they’ll come out to support bold, original films when given the opportunity,” he said. The new Alamo Exclusives “gives us another way to champion filmmaker-driven films that deserve to be discovered and connect them with the wider Alamo Drafthouse audience.”
The initiative comes at a difficult time for indie films. Since the pandemic upended the movie business, traditional studios and distributors have had less appetite for risk, including betting on smaller indie films out of festivals.
And as the 2023 dual writers’ and actors’ strikes thinned out theatrical lineups, that aversion to uncertainty became a push for reliable and profitable hits.
“Too many incredible films premiere at festivals and then never receive the theatrical life they deserve,” Lisa Dreyer, director of Fantastic Fest and film innovation at Alamo, said in a statement. “We are actively searching for films across all genres, from horror to comedy, to everything in-between, to champion in this new, exciting way.”
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