HHS affirms abortion services covered by federal emergency care law

State regulations overruled to protect physicians’ clinical judgments.

Emergency medical services include abortion services, according to the U.S. Department of Health and Human Services (HHS).

The federal department this week announced new guidance to physicians across the country about the Emergency Medical Treatment and Active Labor Act (EMTALA). HHS Secretary Xavier Becerra reaffirmed the federal law protects providers when offering legally mandated, life- or health-saving abortion services in emergency situations.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Becerra said in a news release. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care. Protecting both patients and providers is a top priority, particularly in this moment. Health care must be between a patient and their doctor, not a politician. We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”

Becerra referred to the June 24 U.S. Supreme Court decision in the case known as Dobbs v. Jackson Women’s Health Organization, which overturned the landmark Roe v. Wade decision that legalized abortion in 1973.

“As frontline health care providers, the federal EMTALA statue protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice,” the letter said.

Becerra cited conditions that could be emergencies such as ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders such as preeclampsia with severe features. The law requires Medicare hospitals provide all patients with appropriate medical screenings, examinations, stabilizing treatment and transfer, if necessary, irrespective of state laws or mandates that apply to specific procedures, the HHS news release said.

“Everyone should have access to the health care they need — especially in an emergency,” Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure said in the news release. “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. CMS will do everything within our authority to ensure that patients get the care they need.”

EMTALA enforcement is complaint driven and physicians and hospitals that violate the law could lose Medicare provider agreements or face civil monetary penalties, the letter said.

On July 8, President Joe Biden issued an executive order for HHS to take the lead on mobilizing federal agencies to support access to reproductive care, including abortion. The president called it a new “health crisis,” and HHS has launched ReproductiveRights.gov with information for patients.