HHS says ’emergency medical care’ includes abortion, even in states where it is banned

by ian

Ian Patrick, FISM News


The Department of Health and Human Services (HHS) clarified on Monday that an executive order issued by President Biden does include abortion services, even in states that have banned the procedure.

Through a press release from the HHS website, the government body said it aimed to clear any confusion on the “full rights and protections for emergency medical care afforded under the law.” Part of these protections include “legally-mandated, life- or health-saving abortion services in emergency situations.”

On Twitter, HHS Secretary Xavier Becerra made his stance known saying, “Under the law, no matter where you live, women have the right to emergency care — including abortion care. HHS will enforce this.”

Numerous states have enacted “trigger laws”, which placed further restrictions on abortion following the reversal of Roe v. Wade. However, every current state law prohibiting abortion provides exceptions for medical emergencies when the mother’s life is in danger. Many state laws also provide exceptions for pregnancies caused by rape and/or incest.

In a separate letter to health care providers, Secretary Becerra explained that giving abortions even in states that ban or punish the procedure is protected under the Emergency Medical Treatment and Active Labor Act (EMTALA). This act essentially guarantees a pregnant woman certain treatment in “emergency” scenarios.

“The EMTALA statute requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures,” Becerra writes.

“It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment.”

As far as what constitutes an emergency, Becerra said this “is the responsibility of the examining physician or other qualified medical personnel.” He listed a few examples of what could constitute an emergency scenario such as “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders.”

A description of EMTALA provided on the Centers for Medicare and Medicaid Services (CMS) website adds that emergency scenarios “may include a condition that is likely or certain to become emergent without stabilizing treatment.”

Becerra noted that treatment for these scenarios is also up to the physician, but could include “medical and/or surgical interventions” such as abortion “irrespective of any state laws or mandates that apply to specific procedures.”

“Thus, if a physician believes that a pregnant patient presenting 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,” Becerra writes.

“And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which effectively overturned the Roe v. Wade decision, President Biden issued an executive order focused entirely on “reproductive healthcare.”

Besides being a direct response to the eradication of federally protected abortions, the order also established a 30-day window for the Biden administration to assess the situation and offer solutions. This directive was primarily aimed at HHS and Secretary Becerra.

Beyond this directive to health care providers, HHS has also issued a government website titled ReproductiveRights.gov, announced new funding for “Title X family planning providers” worth $3 million, and met with state political leaders “to discuss state-specific concerns.”