White House says hospitals, doctors must give abortions in emergencies

The Biden administration on Monday said doctors and hospitals need to follow federal law and provide abortions if there is a medical emergency and the health or life of the patient is at risk, regardless of state law.

The Department of Health and Human Services (HHS) reaffirmed that the Emergency Medical Treatment and Labor Act (EMTALA) protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations. 

Administration officials said the federal government can penalize doctors or hospitals that fail to provide care in those circumstances.

“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 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.”

The announcement follows President Biden’s executive order on reproductive health issued Friday, and comes as the White House fends off criticism for its seemingly sluggish response to the Supreme Court’s ruling overturning Roe v. Wade.

EMTALA has been on the books for over 30 years. Under the law, if an emergency medical condition is found to exist, the hospital must provide available stabilizing treatment or an appropriate transfer to another hospital that has the capabilities to provide stabilizing treatment. 

HHS officials on a call with reporters said the administration is not making any new policy or changes to the existing law. The point of the guidance is to remind providers that the EMTALA law exists, and preempts any state restrictions.

The law leaves it up to a physician to determine what qualifies as an emergency medical condition for a pregnant patient, but the administration listed examples such as ectopic pregnancy, complications of miscarriage or severe preeclampsia.

Under the law, providers don’t need to wait for a patient’s condition to worsen. If there is an emergency, a physician or other provider must provide stabilizing treatment.

Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the federal statute, HHS said.

The guidance from the administration comes as dozens of states enact strict abortion bans in the wake of the ruling. Some states make explicit exceptions for the health and life of a mother, but others don’t.

Providers in some states have said they fear prosecution under the news laws if they perform an emergency abortion. Senior HHS officials told reporters the guidance is meant to provide reassurance for those hospitals and physicians that they should trust their clinical judgment.

“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 HHS official said. 

In a letter dated Monday, Becerra reassured health providers they will be protected.

“[I]f a physician believes that a pregnant patient at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.”

EMTALA is a complaint driven process, and an investigation can’t occur without a complaint to the federal government.

Each violation will cost a hospital $119,942 if it has over 100 beds, and $59,973 for hospitals under 100 beds. 

Hospitals could also lose their Medicare and Medicaid provider agreements, and private citizens who are harmed by a physician’s or hospital’s failure to provide stabilizing treatment may file a civil suit against the hospital to obtain damages. 

Additionally, an individual physician could also face civil penalties of $119,942 per violation.