HHS Says Hospitals Must Provide Abortions When an Emergency

[co-author: Brittany Bratcher]

HHS released guidance on July 11, 2022, stating that the Emergency Medical Treatment and Active Labor Act (EMTALA)—which requires hospitals and physicians to provide emergency medical treatment when an emergency medical condition is found to exist—preempts any conflicting state restrictions and prohibitions on abortions. The guidance states that hospitals and physicians must provide abortions when a pregnant patient is determined to be experiencing an emergency medical condition as defined by EMTALA, and abortion is the stabilizing treatment necessary to resolve that condition.

The guidance states that, under EMTALA, hospitals and physicians have three obligations:

  • The screening requirement, which applies to any individual who comes to the emergency department and makes a request for examination or treatment of a medical condition, including those in labor or those with an emergency condition related to pregnancy;
  • The stabilization requirement, which requires the hospital to provide treatment to stabilize the patient; and
  • The transfer requirement, which restricts the ability of a hospital to transfer persons to another hospital unless the person is stabilized.

The guidance provides that if the hospital determines that a “patient’s condition, such as an ectopic pregnancy, requires stabilizing treatment to prevent serious jeopardy to the patient’s health . . . the qualified medical personnel is required by EMTALA to provide the treatment.” The guidance explains that it is the duty of the hospital and physicians under EMTALA to provide the necessary stabilizing medical treatment to a patient who presents at an emergency department with an emergency medical condition and that this requirement “preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment.”

Additionally, in a letter to health providers also released on July 11, 2022, HHS secretary Xavier Becerra said that “if a physician believes that a pregnant patient presenting at an emergency department, including 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.” The letter further adds that when a state law “prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

The HHS guidance states that it will fine those hospitals and physicians who do not comply with the guidance as well as block Medicare and Medicaid payments. The fines range from about $60,000 to $120,000.

In response to the HHS guidance, Texas Attorney General Ken Paxton filed a lawsuit against HHS in the Northern District of Texas, on July 14, 2022, alleging that HHS acted outside of its authority in providing the guidance that EMTALA mandates emergency healthcare providers to perform abortions. The complaint alleges that, while EMTALA defines both “emergency medical condition” and “to stabilize,” “EMTALA does not mandate, direct, approve, or even suggest the provision of any specific treatment. It says nothing about abortion.” See State of Texas’s Original Complaint ¶ 22 (filed July 14, 2022) (Complaint). The Complaint also alleges that EMTALA was only intended to ensure that healthcare providers treat all patients with the same standard of care, regardless of the patients’ ability to pay. Id. ¶ 24.

The Complaint further alleges that the standard of care is determined by the state, citing to a provision in the Social Security Act, of which EMTALA is part, which states, “[n]othing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided . . . or to exercise any supervision or control over the administration or operation of any such institution, agency, or person [providing health services].” 42 U.S.C. § 1395.

The Complaint notes that, in Texas, The Human Life Protection Act prohibits abortions, except in cases where the woman has a life-threatening physical condition arising from the pregnancy. H.B. 1280 at § 2 (to be codified at Tex. Health & Safety Code § 170A.002(b)(2)). Under the Act, abortion is defined as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant” and does not include “birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to: (A) save the life or preserve the health of an unborn child; (B) remove a dead, unborn child whose death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy.” Tex. Health & Safety Code § 245.002(1).

The Complaint also cites to separate Texas criminal statutes, enacted in 1925 pre-Roe, that provide a person who performs or causes an abortion is guilty of an offense and shall be confined in a penitentiary. See, e.g., Tex. Rev. Civ. Stats. Ann. Art. 4512.1, previously codified at Tex. Pen. Code art. 1191 (1925) (Texas’s ability to enforce these criminal statutes, however, is being challenged in a separate lawsuit, currently pending in state court: Whole Woman’s Health, et al. v. Ken Paxton, et al., No. 2022-38397 (269th Dist. Ct., Harris County, Tex. filed June 28, 2022). The Complaint alleges that the HHS mandate is an unlawful attempt to preempt these state laws. See Complaint ¶ 40.

The HHS guidance regarding EMTALA can be found here. Secretary Xavier Becerra’s letter to providers can be found here. The Complaint can be found here.