The text of the federal law in question — the Emergency Medical Treatment and Active Labor Act, or EMTALA for short — is not changing, a senior health official told reporters on a call on Monday. But the new guidance around it seeks to provide clarity and assurances to health care providers about whether they can treat serious medical conditions related to pregnancy, including ectopic pregnancy, hypertension and preeclampsia under some states’ increasingly restrictive laws.
“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,” said Health and Human Services Secretary Xavier Becerra. “Under the law, no matter where you live, women have the right to emergency care — including abortion care.”
Notably, the administration’s memo reminds hospitals and individual doctors that EMTALA violations carry stiff penalties — including fines and, potentially, termination from the Medicare program. It also emphasizes that the federal law protecting doctors’ ability to provide an abortion under those circumstances trumps any state ban and seeks to give doctors wide latitude to use their medical judgment on what constitutes an emergency.
States that prohibit abortion allow exceptions to protect the life of the mother, but many physicians feel the laws are too vague or narrow to allow doctors to use their best judgment, and they fear they could be forced to defend their care in court and possibly face lengthy prison sentences for ending a pregnancy in the context of a health emergency.
Providers don’t have to sit and wait for their patients’ condition to worsen or become life-threatening to be able to offer an abortion, the federal health officials emphasized Monday, adding that doctors will be legally protected if the patient has a condition that could seriously impair but not kill them.
The new action — one of the promised pieces included in the executive order Biden signed last week — may not be enough to stem swelling criticism from progressives and reproductive rights’ groups arguing the administration has not acted swiftly or aggressively enough to protect abortion rights and has largely focused on calling on people to vote in the midterms election.
Yet many believe the stronger EMTALA guidance could make a real difference.
“Most doctors are scared out of their minds right now because the threats they face are so severe and scary,” said Greer Donnelly, a law professor at the University of Pittsburgh who focuses on abortion rights. “But the government can say: You don’t just have the right to provide an abortion to someone having an emergency, you have a responsibility to do so. And even if you’re an anti-abortion doctor who doesn’t want to do it, it doesn’t matter. The hospital has to provide the patient with someone else who is willing to do it.”
Donnelly emphasized, however, that this guidance will have little impact unless it’s paired with tougher federal enforcement. Though the onus is on patients to file complaints that their right to emergency care was violated, and enforcement of the law outside of the abortion context is often spotty, the federal government could bring lawsuits against hospitals or individual doctors who don’t comply.
Facing criticism from lawmakers and activists about their response to the fall of Roe, Biden last week pledged again that the federal government would defend pregnant people in abortion-restrictive states, bolster privacy rights and promote access to medication abortion, though it remains unclear how exactly it will do so.
Sarah Owermohle contributed reporting.