(CNN) In new clarifying guidance announced Monday, the Biden administration said federal law anticipates state bans on abortion when emergency care is needed, and that the federal government can penalize institutions or providers that don’t perform abortions that contribute to the need for abortion Treatment of medical emergencies are required.
“Under the law, women, no matter where they live, have the right to emergency care — including abortion care,” HHS Secretary Xavier Becerra said in a news release Monday. “Today we reiterate unequivocally that we expect providers to continue providing these services and that federal law preempts state abortion bans when necessary for emergency care.”
Litigation over abortion bans and other laws that severely restrict the process are ongoing in more than a dozen states after the US Supreme Court ruled June 24 in Roe v. Wade lifted.
In a letter to the nation’s health care providers Monday, Becerra said a federal law called the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, protects providers’ clinical judgment and the actions they take to provide pregnant patients with a stabilizing treatment to provide treatment are under medical emergency conditions, regardless of restrictions in any particular state.
The law has been on the books since 1986. It specifically mandates that all patients receive appropriate medical evaluation, examination, stabilizing treatment, and facility transfer.
The government said examples of medical emergencies include, but are not limited to, ectopic pregnancy – when the fertilized egg grows outside of a woman’s uterus – and complications of miscarriage. Stabilizing treatment might include abortion.
Becerra said that when a state law prohibits abortion and does not include an exception for the life or health of the pregnant person, that law is preempted by federal law.
“We’ve heard a lot from doctors that we needed to be clearer on these issues because people were still too scared to treat people,” a senior HHS adviser said in a background briefing. The new guideline is intended to “try to give this confirmation of the clinical judgment of these doctors and hospitals”.
HHS said it will do everything in its power to ensure patients receive the care they need.
The law applies to emergency rooms and other specific clinical settings. Providers also don’t have to wait for a patient’s condition to deteriorate to be protected.
Investigations and enforcement under the law depend on individuals filing a complaint with the government.
If a hospital is found to be breaking the law, it can lose its Medicare and Medicaid provider agreements and face civil penalties. An individual doctor could also face civil penalties if found to be in breach of the regulations.
HHS can fine hospitals with more than 100 beds $119,942 and hospitals with fewer than 100 beds $59,973 per violation. A doctor could face a $119,942 fine per violation.
“We’re making enforcement a priority,” the senior official said.
A memo from the Centers for Medicare and Medicaid Services said hospitals should ensure that any staff who may find themselves in an emergency situation with a pregnant person are aware of the hospital’s obligation under EMTALA.
The law also includes a whistleblower provision that prevents retaliation by a hospital against an employee who refuses to transfer a patient with an emergency medical condition that has not been stabilized.
“Healthcare needs to be between a patient and their doctor, not between a politician,” Becerra said. “We will continue to use all available resources at HHS to ensure women have access to the life-saving care they need.”
When the Supreme Court decision was made, several medical groups criticized the decision as one that affected their ability to do their jobs. One, the American College of Obstetricians and Gynecologists, called it “a direct blow to physical autonomy, reproductive health, patient safety, and health equity in the United States.”
The administration has taken several other steps to ensure women have some access to abortion services and birth control, although the president does not have the direct ability to restore access to abortion nationwide.
On Friday, President Biden signed an executive order designed to protect access to medical abortion, patient privacy and emergency contraception, and to initiate public education efforts.
Biden instructed Becerra to provide a report on actions his department is taking to ensure access to reproductive health care. HHS will take action to expand access to emergency and long-acting reversible contraceptives such as intrauterine devices.
Attorney General Merrick Garland also issued a statement saying states cannot ban mifepristone, an FDA-approved drug for terminating early pregnancy.
