Biden administration sends sharp reminder to doctors about obligation to provide emergency abortions
In the letters, US Department of Health And Human Services Secretary Xavier Becerra and Centers for Medicare and Medicaid Services Administrator Chiquita Brooks-LaSure reminded hospitals and provider associations of their legal duty to provide stabilizing medical care – or transfers, if appropriate – to all patients.
The letters come soon after the US Supreme Court formally dismissed an appeal over Idaho’s strict abortion ban that had prompted at least one large hospital system to send some pregnant patients out of state via air transport to protect their health.
Idaho’s ban criminalizes most abortions and does not allow a doctor to perform an abortion even if the patient’s health is in danger from the pregnancy itself, in most circumstances.
The Biden administration argued that the law violates the federal Emergency Medical Treatment and Labor Act, also known as EMTALA.
The 1986 law requires all US hospitals that have received Medicare money — nearly all of them — to screen everyone who comes into their emergency rooms to determine whether the person has an emergency medical condition, without regard for their ability to pay for those services.
The law also requires hospitals, to the best of their ability, to stabilize anyone with an emergency medical condition or transfer them to a facility that has that capacity. Hospitals must treat patients “until the emergency medical condition is resolved or stabilized.”
Pregnant people were singled out in the law in 1989, after reports that some hospitals were refusing to care for uninsured women in labor. Congress expanded EMTALA to specify how it included people who were pregnant and having contractions.
In 2021, the Biden administration released the Reinforcement of EMTALA Obligation, which says a doctor’s duty to provide stabilizing treatment “preempts any directly conflicting state law or mandated that might otherwise prohibit or prevent such treatment,” although it did not specify whether an abortion has to be provided.
In July 2022, the Biden administration’s guidance clarified that EMTALA includes the need to perform stabilization abortion care if it is medically necessary to treat an emergency medical condition.
Experts have said that the law around emergency treatment has been murky ever since the Supreme Court’s Dobbs decision overturned Roe v. Wade, allowing states to make their own laws restricting abortions. Forty-one states now have abortion bans with only limited exceptions, and 14 states have total bans.
Texas also sued the US government over its EMTALA guidance, and in 2022, a federal judge allowed the law to be blocked. The federal government has asked the US Supreme Court to review the law, and that case could go before the court next term.
Although last week’s Supreme Court decision did not resolve the entire EMTALA matter, Tuesday’s letter to providers spells out that “EMTALA’s protections remain in place.” The letter reminds providers that state law is pre-empted if it prohibits abortion and does not include an exception for the life and health of the pregnant individual and if they seek medical help that necessitates an abortion.
“No pregnant woman or her family should have to even begin to worry that she could be denied the treatment she needs to stabilize her emergency medical condition in the emergency room,” the letter says. “As health care providers, you know better than anyone how crucial it is for anyone experiencing a medical emergency to receive appropriate care and to receive it quickly. And yet, we have heard story after story describing the experiences of pregnant women presenting to hospital emergency departments with emergency medical conditions and being turned away because medical providers were uncertain about what treatment they were permitted to provide.”
CMS says it will investigate all EMTALA complaints to make sure providers are following federal law. The agency also announced Tuesday that it had created an EMTALA complaint form in Spanish and had made it easier for people to file complaints directly at CMS.gov.
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CMS has created a website to help people understand exactly what protections are offered under EMTALA.
If a provider is found to be in violation of EMTALA, CMS will offer one opportunity to come into compliance. Failure to do so may mean a fine or the loss of a Medicare provider agreement.
The federal agencies said they will continue to educate the public about their rights to emergency medical care and will help support hospitals and health care professionals in their efforts to meet EMTALA obligations.
“We will continue to do everything in our power to give you the clarity you need regarding the federal laws that protect you and your patients in emergency medical situations,” the letter says.
The letters emphasize the legal duty of hospitals under EMTALA to provide stabilizing medical care or transfers if necessary, ensuring the health of all patients, including pregnant individuals. The Biden administration's guidance clarifies that EMTALA includes the need for stabilization abortion care if medically necessary to treat an emergency medical condition.
