The Biden administration has seemingly found a way to federally protect abortion care services in all states in some circumstances.
The Department of Health and Human Services (HHS) announced new guidance and sent a message to American doctors that all patients, including pregnant women and others experiencing pregnancy loss, have access to the full right and protections for emergency medical care. Abortion care can be considered emergency care, and the protections under the clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA) also extend to doctors to use their judgement when a medical situation is an emergency.
In addition to issuing clarifying guidance on the law, HHS Secretary Xavier Becerra also made clear the federal law preempts state law restricting access to abortion 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 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. Protecting both patients and providers is a top priority, particularly in this moment. Healthcare 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.”
The agency, which issued the guidance through the Centers for Medicare and Medicaid Services (CMS), published its response following President Joe Biden’s executive order on reproductive healthcare, which directed federal officials to find pathways to safeguard abortion care and other reproductive healthcare services.
All actions are a response to the Supreme Court’s decision to upend nearly 50 years of precedence of the right to abortion care access. The high court effectively overturned Roe v. Wade in late June, allowing many states to immediately enact abortion care restrictions.
“Everyone should have access to the health care they need — especially in an emergency,” CMS Administrator Chiquita Brooks-LaSure said in a statement. “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.”
In his letter to healthcare providers, Becerra underscored that states cannot enforce laws that violate the federal law on emergency care. In addition, he noted that emergency medical conditions involving pregnant patients can include ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.
“Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the EMTALA statute,” Becerra wrote.
The letter’s direction that state law is preempted by the federal law is critical, as some states where lawmakers have - or are attempting - to restrict or ban abortion care in such extremes that healthcare providers may be delayed in giving life-saving care as a result.
HHS has taken up five priorities since the Supreme Court’s decision, including:
- increasing access to medication abortion;
- protecting patients and providers from discrimination, and ensuring privacy for patients and providers;
- protecting emergency abortion care;
- ensuring providers have family planning training and resources; and
- strengthening family planning care, including emergency contraception.
Amy joined TriMed Media as a Senior Writer for HealthExec after covering home care for three years. When not writing about all things healthcare, she fulfills her lifelong dream of becoming a pirate by sailing in regattas and enjoying rum. Fun fact: she sailed 333 miles across Lake Michigan in the Chicago Yacht Club "Race to Mackinac."