In more than a dozen states, legal battles are raging over abortion bans and other laws that severely restrict the procedure after the U.S. Supreme Court ended the constitutional right to an abortion on June 24.
In a letter to the nation’s health care providers on Monday, Becerra said a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA) protects providers’ clinical judgment and the actions they take to provide stabilizing treatment to pregnant women. patients experiencing an emergency. medical conditions, regardless of limitations in any given state.
EMTALA has been in effect since 1986. It specifically requires all patients to undergo appropriate medical screening, examination, stabilization treatment, and transfer to an appropriate facility if necessary.
The administration said examples of medical emergencies may include, but are not limited to, ectopic pregnancy — when the fertilized egg grows outside a woman’s uterus — and complications of miscarriage. Stabilizing treatment could include abortion.
Becerra said that if a state law prohibits abortion and does not include an exception for the life and health of the pregnant person, that state law is preempted by the federal statute.
“We heard a lot from doctors that we needed to be clearer on these points because people were still too scared to treat people,” a senior HHS adviser said in a media briefing. Today’s guidance is “intended to try to provide that reassurance here about the clinical judgment of those doctors and hospitals.”
HHS said it will do everything within its authority to make sure patients get the care they need.
The statute applies to emergency departments and other special clinical settings. Providers also will not have to wait until a patient’s condition worsens to be protected by this statute.
If a hospital is found to be in violation of this statute, a hospital could lose its Medicare and Medicaid provider agreements and may face civil penalties. An individual doctor could also face civil penalties if found to be in violation.
Under the law, HHS can fine $119,942 per violation for hospitals with more than 100 beds, $59,973 for hospitals with fewer than 100 beds. A doctor could face a fine of $119,942 per violation.
“We make enforcement a priority,” said a senior HHS official.
A memo from the Centers for Medicare and Medicaid Services said hospitals should ensure that all staff who may deal with an emergency situation with a pregnant person are aware of the hospital’s obligation under EMTALA.
The statute also contains a whistleblower provision that prevents retaliation by the hospital against its employee who refuses to transport a patient with a medical emergency that has not been stabilized by the hospital. A link on the CMS website allows users to file an EMTALA complaint.
Enforcement of EMTALA depends on individuals making complaints to the government. An investigation can only follow if a complaint is filed.
“Health care should be between a patient and their doctor, not a politician,” Becerra said in a press release. “We will continue to leverage all available resources at HHS to ensure women can access the life-saving care they need.”
In the wake of the US Supreme Court’s decision in June to overturn Roe v. Wade and eliminate the constitutional right to abortion, several doctors’ groups criticized the decision as interfering with their ability to do their jobs. For example, the American College of Obstetricians and Gynecologists said the decision was “a direct blow to bodily autonomy, reproductive health, patient safety and health equity in the United States.”
The Biden administration has taken several additional steps to ensure that women have some access to abortion services and birth control. The President does not have the immediate ability to restore access to abortion nationwide.
On Friday, President Joe Biden signed an executive order aimed at protecting people’s access to medical abortion, patient privacy, emergency contraception and launching public education efforts.
Over the next 30 days, Biden directed Becerra to report on what his department is doing to ensure access to reproductive health care. In the future, HHS will also take action to expand emergency contraception and long-acting reversible contraception, such as intrauterine devices. Attorney General Merrick Garland also issued a statement saying states cannot ban Mifepristone — an FDA-approved drug used to end early pregnancy.
