Jul 11, 2022 - Health

Life-saving abortions OK despite state bans, Biden administration says

Picture of Xavier Becerra

Secretary of Health and Human Services Xavier Becerra. Photo: Alex Wong/Getty Images

The Department of Health and Human Services on Monday released guidance saying that health providers who perform abortions in emergency situations are protected under federal law regardless of what bans are in place in their states.

Why it matters: The move is aimed at giving assurances to abortion providers who fear they could be prosecuted for offering potentially life-saving care.

Details: The Emergency Medical Treatment and Active Labor Act "protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations," said HHS in a guidance issued via the Centers for Medicare and Medicaid Services.

  • "The EMTALA statute 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," the release states.
  • Senior HHS officials told reporters on a call Monday that EMTALA preempts state laws, including state restrictions that might not offer any exceptions.

Context: EMTALA, which was enacted in 1986, ensures that people have access to emergency services regardless of their ability to pay.

HHS Secretary Xavier Becerra assured providers in a letter that their "clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients" will be protected under federal law.

  • "[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."

What they're saying: "Under the law, no matter where you live, women have the right to emergency care — including abortion care," Becerra said in a statement.

  • "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," Becerra added.
  • "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.

Some states that have banned or heavily restricted abortion allow exceptions for medical emergencies. But health providers have faced questions determining what qualifies as an emergency under a state ban.

  • This uncertainty could "at best, ... make physicians hesitate to save the life of a woman; at worst, outright refuse to," Lawrence Gostin, a law professor at Georgetown University, told Axios' Tina Reed.

Between the lines: Health experts expect to see a rise in maternal deaths as more states move to ban abortion.

Zoom out: The Biden administration has been taking steps in response to the Supreme Court decision that overturned Roe v. Wade.

  • President Biden last week signed an executive order aimed at protecting abortion access. However, the order will not prevent states from continuing to ban the procedure.

What we're watching: House lawmakers are planning to vote on a bill this week aimed at codifying Roe into law.

  • Democrats are pushing to get rid of the filibuster for the legislation to pass in the Senate, where other protective measures have failed.

Go deeper: Health experts see rise in maternal mortality post-Roe

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