“Under the law, no matter where you live, women have a right to emergency care — including abortion care,” HHS Secretary Xavier Becerra said in a news release Monday. “Today we state unequivocally that we expect providers to continue to offer these services and that federal law protects state abortion bans when they are needed for emergency care.” More than a dozen states are fighting legal battles over abortion bans and other laws that severely restrict the procedure after the US Supreme Court overturned Roe v. Wade on June 24.
In a letter to the nation’s health care providers Monday, Becerra said a federal law called the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, protects providers’ clinical judgment and the actions they take to provide stabilizing treatment to pregnant women. patients who have medical emergencies, regardless of any state restrictions.
The law has been in effect since 1986. It specifically requires that all patients receive an appropriate medical evaluation, examination, stabilization treatment, and facility transfer.
The administration said examples of medical emergencies include, but are not limited to, ectopic pregnancy — when a fertilized egg grows outside a woman’s uterus — and complications from miscarriages. Stabilizing treatment may include abortion.
Becerra said that if a state law prohibits abortion and does not include an exception for the life or health of the pregnant woman, that law takes precedence over the federal statute.
“We’ve heard a lot from doctors that we need to be more clear on these issues because people are still too scared to treat people,” a senior HHS adviser said at a briefing. The new guidance is “intended to try to provide that reassurance here to the clinical judgment of those doctors and hospitals.”
HHS said it will do everything within its authority to ensure patients get the care they need.
The statute applies to emergency departments and other specific clinical facilities. Plus, providers won’t have to wait for a patient’s condition to get worse to be protected.
Investigation and enforcement under the statute is up to the people who file a complaint with the government.
If a hospital is found to be in violation of the statute, it could lose its Medicare and Medicaid provider agreements and could face civil penalties. An individual physician may also face civil penalties if found to be in violation.
HHS can impose a penalty of $119,942 per violation for hospitals with more than 100 beds and $59,973 for hospitals with fewer than 100 beds. A doctor can face a fine of $119,942 for each violation.
“We make law enforcement a priority,” the senior official said.
A memo from the Centers for Medicare and Medicaid Services said hospitals should ensure that all staff who may be involved in an emergency situation with a pregnant woman are aware of the hospital’s obligation under EMTALA.
The statute also contains a whistleblowing provision that prevents retaliation by a hospital against an employee who refuses to transfer a patient with a medical emergency who is not stabilized.
“Healthcare should be between a patient and their doctor, not a politician,” Becerra said. “We will continue to use all available resources at HHS to make sure women have access to the life-saving care they need.”
When the Supreme Court decision came out, several medical groups criticized the decision as interfering with their ability to do their jobs. One, the American College of Obstetricians and Gynecologists, called it “a direct blow to bodily autonomy, reproductive health, patient safety, and health care equity in the United States.”
The administration has taken several other steps to ensure that women have some access to abortion services and birth control, although the president has no direct ability to restore abortion access nationwide.
On Friday, President Biden signed an executive order aimed at protecting access to medical abortion, patient privacy and emergency contraception, and launching public education efforts.
Biden ordered Becerra to submit a report on the actions his department is taking to ensure access to reproductive health care. HHS will take action to expand access to emergency contraception and long-acting reversible contraception such as intrauterine devices.
Attorney General Merrick Garland also issued a statement that states cannot ban mifepristone, a drug used to terminate early pregnancies that has FDA approval.
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