HHS says physicians must provide abortions in medical emergencies, regardless of state law

Physicians must provide abortions in medical emergencies under federal law and will face penalties if they decline to offer the procedure in these cases, Health and Human Services Secretary Xavier Becerra wrote in a letter to health-care providers on Monday.

Becerra said federal law pre-empts state abortion bans in cases where women face medical emergencies associated with pregnancy under the Emergency Medical Treatment and Active Labor Act. If an abortion is necessary to treat a woman facing a medical emergency, physicians must offer the procedure, the health secretary wrote.

Hospitals that decline to provide abortions in these cases could have their Medicare provider agreement terminated or face financial penalties, the health secretary said. Individual physicians could also be cut from Medicare and state health programs if they refuse to offer abortions in medical emergencies, he added.

Becerra said such medical emergencies include but are not limited to ectopic pregnancies, complications from miscarriages and hypertensive disorders such as preeclampsia that usually occurs after 20 weeks of pregnancy. Preeclampsia results in high blood pressure, severe headaches and blurred vision. The condition can lead to fatal complications if untreated.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Becerra said. “We are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care.”

President Joe Biden signed an executive order Friday directing HHS to protect abortion access. At least nine states have banned abortion since the Supreme Court overturned Roe v. Wade last month, which protected access to the procedure as a constitutional right for nearly 50 years. Several other states have tried to ban abortion but their laws have been blocked by state courts.

Although state abortion bans generally make exceptions for when the woman’s life is in danger, reproductive rights activists fear the laws will have a chilling effect on patients seeking care as well as physicians who fear prosecution. U.S. health officials worry that wary doctors could wait too long to treat ectopic pregnancies and complications from miscarriages while awaiting legal guidance.

All of the state abortion bans make performing an abortion a felony that carries prison time, the length of which varies depending on the state. Women who receive abortions are generally exempt from prosecution under the state bans, but reproductive rights group are concerned that states will move to criminalize receiving an abortion as well.

This is a developing story. Please check back for updates.