Hospitals should perform needed emergency abortions, CMS says

A federal statute that requires providers to offer life- or health-saving emergency care preempts state laws restricting access to abortion, the Centers for Medicare and Medicaid Services asserted in guidance documents released Monday.

The guidance doesn’t set new policies, but the existing laws that underpin it have renewed significance following the Supreme Court’s decision to overturn federal abortion protections. Abortion access is now up to the discretion of individual states, and several have limited or outright banned the procedure. Legal battles are underway to challenge many state laws.

“Protecting both patients and providers is a top priority, particularly in this moment,” Health and Human Services Secretary Xavier Becerra said in a news release. “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.” On Friday, President Joe Biden signed an executive order instructing agencies to pursue actions affirming federal authority over aspects of abortion law.

President Ronald Reagan enacted the Emergency Medical Treatment and Active Labor Act in 1986. Under the law, hospitals must appropriately screen anyone who comes into an emergency room requesting treatment and provide necessary stabilizing treatment or transfer patients to other suitable facilities.

When a physician believes a pregnant patient at an emergency department, and sometimes at a labor and delivery department, needs an abortion to stabilize their condition, the physician needs to provide the treatment, the guidance documents say. EMTALA therefore preempts state laws that ban abortion without exceptions for the life and health of pregnant patients, or with more narrow exceptions, HHS officials said on a call with reporters Monday. The officials refused to be identified by name or quoted as a condition of allowing reporters to listen to the call.

CMS previously updated its EMTALA guidance last year, after Texas banned most abortions. But the agency has heard from physicians that they need more clarity because some fear offering treatments they believe are appropriate in emergency situations, the HHS official said. The updated guidance is an attempt to reassure providers that their patients don’t have to be nearly dead before they can take action, and that physicians’ clinical judgment is protected by federal law, the official added.

EMTALA may offer protections for treatment delivered for ectopic pregnancies, complications from pregnancy loss, hypertensive disorders and other conditions, the CMS guidance says. An emergency medical condition is defined more broadly than just a life-threatening issue, the agency wrote. Hospitals cannot cite state law as a reason for transferring patients during emergencies, according to CMS.

HHS may investigate EMTALA noncompliance when it receives complaints. Hospitals in violation of the law could be subject to termination from the Medicare program or to fines of up to $119,942 per violation, which vary based on facility size, the guidance says. Individual physicians can also be removed from Medicare or fined $119,942 per violation. Patients harmed by noncompliance may file civil lawsuits against hospitals.

EMTALA complaints are reviewed by Quality Improvement Organizations to determine whether a physician treating a patient acted appropriately when deciding if an emergency existed and what stabilizing care to provide.