HHS on Monday issued guidance saying the Emergency Medical Treatment and Labor Act (EMTALA) pre-empts state law, meaning health care providers "must provide" abortions if they feel it is necessary in a medical emergency, regardless of whether abortion is banned in their state.

Check out our new resource page for post-Roe implications for health care 

Details on the guidance

According to the guidance, EMTALA "protects providers when offering legally-mandated, life- or health-saving abortions services in emergency situations." EMTALA also "requires that Medicare hospitals provide all patients an appropriate medical screening, examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures," HHS said.

In a letter, HHS Secretary Xavier Becerra told providers that their "clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients" will be protected under EMTALA.

"[I]f a physician believes that a pregnant patient at an emergency department, including certain labor and delivery departments, 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," Becerra added.

"Protecting both patients and providers is a top priority, particularly in this moment," Becerra said. "We will continue to leverage all available resources at HHS to make sure women can access the lifesaving care they need."

"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 CMS Administrator Chiquita Brooks-LaSure.

Providers struggle to reconcile state law with EMTALA

Since the Supreme Court overturned Roe v. Wade, health care providers have had difficulty determining how state laws regarding abortion interact with EMTALA's mandate to stabilize any patients in a medical emergency, including when performing an abortion if it is necessary to protect a woman's bodily functions or organs, the Wall Street Journal reports.

One senior HHS official told reporters the agency has "heard a lot from physicians that we needed to be clearer on these points because people were still too scared to treat people."

According to Lawrence Gostin, a law professor at Georgetown University, that uncertainty could "at best … make physicians hesitate to save the life of a woman; at worst, outright refuse to."

According to Mary Ellen Palowitch, a senior managing director at Dentons and former EMTALA technical lead at CMS, "[t]he focus has been on elective abortions, but these emergency situations happen often … Women miscarry and have other emergencies, and it's going to be up to the health system, hospital leadership and people who work in the emergency departments on how they'll respond if there's potential civil or criminal liability."

While the new guidance issued by HHS is more detailed than the guidance HHS released on EMTALA and abortion in September 2021, it's still ambiguous, said Sara Rosembaum, a health policy and law professor at George Washington University's Milken Institute School of Public Health.

"It doesn't clarify all that it needs to around what exists as an emergency and what is stabilizing treatment," she said.

Laura Wooster, an official from the American College of Emergency Physicians, said the group welcomes the new guidance, but added that "a significant amount of uncertainty remains." (Evans, Wall Street Journal, 7/11; Bettelheim, Axios, 7/12; Gonzalez, Axios, 7/11; Weixel, The Hill, 7/11)