Administration Rescinds Policy Requiring Hospitals to Provide Emergency Abortions

WASHINGTON — The Trump administration has revoked a Biden-era requirement that hospitals provide emergency abortions to women whose health is in jeopardy.

Though expected, the move announced Tuesday by the Centers for Medicare and Medicaid Services again muddies the nexus between emergency and abortion.

That area of medicine and law has largely been in flux since the Supreme Court decided Dobbs v. Jackson Women’s Health Organization in June 2022, rescinding the national right to abortion enshrined by Roe v. Wade.

The Biden directive, issued on July 11, 2022, stated that the Emergency Medical Treatment and Active Labor Act explicitly protects the “clinical judgment” of frontline health care providers, enabling them to freely provide “stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.”

It went on to state that emergency medical conditions may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.  

“Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the EMTALA statute,” the directive said.

It went on to explain that under the act, the course of treatment necessary to stabilize a patient experiencing such emergency medical conditions is entirely up to the doctor or other qualified medical personnel.

“Stabilizing treatment could include medical and/or surgical interventions (e.g., abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy etc.), irrespective of any state laws or mandates that apply to specific procedures,” the directive said.

In tossing the directive, the Centers for Medicare and Medicaid Services said it was doing so because the Biden-era policy did not reflect the policy of the Trump administration.

While Tuesday’s notice did not explicitly tell hospitals to turn away women seeking abortions in medical emergencies, the new policy statement was vague on the way forward.

It did state that hospitals are still subject to a federal law requiring them to provide reproductive health care in emergency situations, but didn’t explain what that means.

When it was passed in 1986, the Emergency Medical Treatment and Active Labor Act was intended to discourage hospitals from turning away patients who are either uninsured or can’t afford to pay for needed care.

Further, the law requires hospitals that receive federal funding to treat or stabilize emergency patients, or transfer them to a facility that can provide care.

Abortion care isn’t specifically included in the act’s text, but it has long been interpreted as including such coverage.

Tuesday’s announcement said only that the Centers for Medicare and Medicaid Services would “continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment.”

These include, it said, “emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.” 

“CMS will work to rectify any perceived legal confusion and instability created by the former administration’s actions,” the announcement added.

In a statement posted on X on Wednesday afternoon, CMS Administrator Dr. Mehmet Oz said, “EMTALA is clear and the law has not changed: Women will receive care for miscarriage, ectopic pregnancy, and medical emergencies in all 50 states — this has not and will never change in the Trump administration.”

Among those who were not buying Oz’s assurances was the American Civil Liberties Union, which called the rescission of the Biden-era guidance “yet another clear sign the administration is caving to its anti-abortion allies and reneging on President Trump’s campaign promises that his administration would not interfere with abortion access.”

“Regardless of where they live, pregnant patients have a right to emergency abortion care that will save their health or lives,” said Alexa Kolbi-Molinas, deputy director of the ACLU’s Reproductive Freedom Project, in a written statement. 

“By rescinding this guidance, the Trump administration has sent a clear signal that it is siding not with the majority, but with its anti-abortion allies — and that will come at the expense of women’s lives,” Kolbi-Molinas said.

Fatima Goss Graves, president and CEO of the National Women’s Law Center, said rescinding the Biden directive “will put lives at risk.”

“To be clear: this action doesn’t change hospitals’ legal obligations, but it does add to the fear, confusion, and dangerous delays patients and providers have faced since the fall of Roe v. Wade,” Graves said in a statement. 

“At the same time, this administration claims it is considering ways to support ‘population growth,’ but it is actively dismantling the systems that protect pregnant people’s health and lives,” she continued. “The hypocrisy is staggering. 

“No matter what political games the administration wants to play, we will continue to stand with the patients, doctors and hospitals fighting every day to do what is right,” Graves said.

Dan can be reached at [email protected] and @DanMcCue