Biden administration says federal law preempts state abortion bans when emergency care is needed
By Jen Christensen, CNN
In new clarifying guidance announced Monday, the Biden Administration said that federal law preempts state abortion bans when emergency care is needed, and that the federal government can penalize institutions or providers that fail to provide necessary abortions to treat medical emergencies.
“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” HHS Secretary Xavier Becerra said in a news release Monday. “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.”
In more than a dozen states, legal fights are underway over abortion bans and other laws that strictly limit the procedure after the US Supreme Court ended a constitutional right to an abortion on June 24.
In a letter to the nation’s health care providers on Monday, Becerra said a federal statute called the Emergency Medical Treatment and Active Labor Act (EMTALA) protects providers’ clinical judgement and the actions they take to provide stabilizing treatment to pregnant patients who are experiencing emergency medical conditions, regardless of restrictions in any given state.
EMTALA has been on the books since 1986. It specifically requires all patients get the appropriate medical screening, examination, stabilizing treatment and transfer to an appropriate facility if necessary.
The administration said examples of emergency medical conditions may include, but are not limited to, ectopic pregnancy — when the fertilized egg grows outside a woman’s uterus — and complications of miscarriages. Stabilizing treatment could include abortion.
Becerra said if a state law bans abortion and does not include an exception for the life and health of the pregnant person, that state law is preempted by the federal statute.
“We heard a lot from physicians that we needed to be clearer on these points because people were still too scared to treat people,” a senior adviser with HHS said in a background briefing with the media. The guidance today is “meant to try to provide that reassurance here on the clinical judgment of these physicians 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 settings. Providers also will not have to wait for a patient’s condition to worsen to be protected by this statute.
If a hospital is found in violation of this statute, a hospital could lose its Medicare and Medicaid provider agreements and could face civil penalties. An individual physician could also face civil penalties if they are found in violation.
Under the statute HHS may impose a $119,942 fine per violation for hospitals with over 100 beds, $59,973 for hospitals under 100 beds. A physician could face a $119,942 fine per violation.
“We are making enforcement a priority,” a senior HHS official said.
A memo from the Centers for Medicare and Medicaid Services said that hospitals should ensure that all staff who may encounter an emergency situation with a pregnant person be aware of the hospital’s obligation under EMTALA.
The statute also contains a whistleblower provision that prevents retaliation by the hospital against its employee who refuses to transfer a patient with an emergency medical condition that has not been stabilized by the hospital. A link on the CMS website allows people to file an EMTALA complaint.
The enforcement of EMTALA depends on people making a complaint to the government. An investigation can only follow if a complaint is made.
“Health care must be between a patient and their doctor, not a politician,” said Becerra in a news release. “We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”
In the wake of the US Supreme Court decision in June to overturn Roe v. Wade and eliminate the constitutional right to an abortion, several doctors groups criticized the decision as one that interferes with their ability to do their jobs. For instance, the American College of Obstetricians and Gynecologists said the decision was “a direct blow to bodily autonomy, reproductive health, patient safety, and health equity in the United States.”
The Biden administration has taken several additional steps to ensure women have some access to abortion services and birth control. The President does not have the direct ability to restore access to abortion nationwide.
On Friday, President Joe Biden signed an executive order that is meant to protect people’s access to medication abortion, patient privacy, emergency contraception and launch public education efforts.
In the next 30 days, Biden directed Becerra to submit a report on actions his department is taking to ensure reproductive health care access. Going forward HHS will also take action to expand emergency contraception and long-acting reversible contraception like intrauterine devices. Attorney General Merrick Garland has also issued a statement saying states cannot ban Mifepristone — a medication used to end early pregnancy that has FDA approval.
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