The Biden administration sought to clarify the federal government’s authority to reinforce a law mandating that healthcare providers must perform life- or health-saving abortion services in emergency situations, overruling state bans on performing the procedure.
The law, the Emergency Medical Treatment and Active Labor Act, dates back to 1986 and guarantees that anyone coming to an emergency department will be stabilized and treated regardless of insurance status or ability to pay. The rule stipulates that emergency medical conditions that warrant an abortion may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features. While the latest announcement from the Department of Health and Human Services does not implement any new guidelines, it aims to make clear that any state law that is more stringent than the law authorizes is superseded.
“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 HHS Secretary Xavier Becerra. “Healthcare must be between a patient and their doctor, not a politician.”
The agency’s announcement stipulated that hospitals accepting government funding would face consequences for refusing to adhere to the law. Violating the law comes with steep consequences, such as being ousted from the Medicare program, having to pay as much as $100,000 in fines for any severe violations, and maintaining susceptibility to civil lawsuits, either from patients or from transferring or receiving hospitals.
Catholic hospital systems, which account for about 15% of all hospitals in the United States and make much of their money through government reimbursements, have opposed EMTALA guidelines that pertain to emergency abortion in the past. Faith leaders have argued that the rule violates religious doctrine. Some Catholic hospitals limit essential reproductive health services such as abortion, even in circumstances of miscarriage or other pregnancy complications, such as bleeding, infection, or extreme pain.
In 2012, the Centers for Medicare and Medicaid Services penalized St. John Hospital and Medical Center in Michigan over its decision to deny a patient mandatory miscarriage treatment, requiring her to drive to a different hospital, where she needed emergency surgery and 7 pints of blood.
The law also would not shield healthcare providers who perform emergency abortions from civil lawsuits filed against them by people who object to the procedure. Several states, such as Texas and Oklahoma, have laws on the books that empower citizens to sue providers who perform an abortion.
“We’re in the scenario that doctors are going to have to figure out amongst themselves, and it may be different depending on what hospital you’re in, what is a stabilizing condition, how sick does someone have to be to consider that they fall under EMTALA or not,” said Dr. Kristyn Brandi, board chairwoman of Physicians for Reproductive Health New Jersey.
The fallout of the Supreme Court’s decision last month to overturn the constitutional right to an abortion has included a patchwork of ambiguous and overlapping state laws restricting access to the procedure.
In Oklahoma, for example, Gov. Kevin Stitt (R) has signed a flurry of abortion bans over the past year, confident that an end to Roe v. Wade was imminent. One law signed in May banned abortion from the moment of conception unless it is to save the life of the mother or if the pregnancy is the result of incest, rape, or sexual assault that has been properly reported to law enforcement. Another law signed in May banned the procedure after fetal cardiac activity is detected, which is typically around six weeks, and makes no exceptions for rape or incest. It would also deputize civilians to sue anyone suspected of aiding and abetting the procedure for up to $10,000, following in the footsteps of a similar abortion ban passed in Texas last year that has so far held up in court.
