December 7, 2022

The Biden administration on Monday told hospitals that they “must” provide abortion services if the life of the mother is at risk, stating that federal law on emergency treatment guidelines preempts state laws in jurisdictions that now ban the procedure without any exceptions following the Supreme Court’s decision to end a constitutional right to abortion.

The Department of Health and Human Services cited requirements on medical facilities in the Emergency Medical Treatment and Labor Act (EMTALA). The law requires medical facilities to determine whether a person seeking treatment may be in labor or whether they face an emergency health situation — or one that could develop into an emergency — and to provide treatment.

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the agency’s guidance states. “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 EMTALA’s emergency medical condition definition — that state law is preempted.”

The department said emergency conditions include “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.”

“It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment,” HHS Secretary Xavier Becerra wrote in a letter to health care providers.

The department says its guidance doesn’t reflect new policy, but merely reminds doctors and providers of their existing obligations under federal law.

“Under federal law, providers in emergency situations are required to provide stabilizing care to someone with an emergency medical condition, including abortion care if necessary, regardless of the state where they live,” said Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure. “CMS will do everything within our authority to ensure that patients get the care they need.”

Laura Wooster, senior vice president of advocacy and practice affairs for the American College of Emergency Physicians, praised the guidance as a “welcome step” in a statement following the move.

However, Wooster added that “a significant amount of uncertainty remains” regarding how much protection the law offers emergency room doctors risking punishment from their states for providing abortion services.
Becerra’s letter says only that the federal act could “potentially” be wielded “by individual physicians” to mount a defense against state penalties.

“ACEP is assembling a multidisciplinary team of medical experts to examine the wide range of clinical and legal implications that the Dobbs decision and any supporting guidance could have on emergency medicine, patient care and safety,” Wooster said.  

Alexander Tin contributed to this report.

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