HHS to hospitals: Emergency abortion requirements still stand

The Biden administration is reaffirming its enforcement of a policy requiring hospital emergency departments to provide the care necessary to stabilize a patient in medical crisis, in the wake of an inconclusive Supreme Court ruling on the issue.

The treatment could include abortion, even in states with laws restricting such services, Health and Human Services Department Secretary Xavier Becerra and Centers for Medicare and Medicaid Services Administrator Chiquita Brooks-LaSure said in a letter to hospital and provider associations Tuesday.

Related: Supreme Court punts emergency abortions ruling in draft opinion

The Supreme Court punted a decision Thursday about whether federal emergency medical requirements under the Emergency Medical Treatment and Active Labor Act of 1986, or EMTALA, supersede an Idaho abortion ban. The country's highest court has yet to announce whether it'll take up a similar case out of Texas. 

Under EMTALA, Medicare-participating hospitals must offer stabilizing treatment to all patients with an emergency medical condition or transfer them to a facility that can provide the care if deemed necessary. HHS and CMS issued guidance following the 2022 Supreme Court decision overturning Roe v. Wade that EMTALA explicitly includes abortions, even if outlawed under state statute. 

Following the Idaho order, which left the case up to a lower court to determine, Becerra and Brooks-LaSure reaffirmed the guidance. 

“If 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 provider must offer that treatment,” the letter, which was not addressed to specific hospital and provider groups, said. “And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant individual — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.” 

The Health and Human Services Department has already been investigating hospitals reported to be out of compliance with EMTALA for denying emergency abortions. Becerra and Brooks-LaSure reaffirmed that HHS and CMS will continue to investigate EMTALA complaints while litigation continues in the lower courts. 

Hospital groups did not respond to request for comment.