Hospitals Need To Offer Abortions In Emergencies—Even In States Where It’s Illegal, HHS Says

Topline

The Biden Administration said Monday hospitals are required under federal law to provide abortions in lifesaving and other emergency situations, and staff will be protected from any state-level abortion bans, a sweeping guidance as federal officials grapple with a push to outlaw abortion in many states after the Supreme Court overturned Roe v. Wade.

Key Facts

The new guidelines from the Department of Health and Human Services say if a physician determines an abortion is needed to stabilize a patient in an emergency, they “must provide that treatment” regardless of the laws in their state, according to the federal Emergency Medical Treatment and Active Labor Act of 1986.

Hospitals could face fines or lose their Medicare partnership if they violate that law.

HHS also told healthcare providers that since the 1986 federal law preempts any state abortion laws, it “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients,” and physicians could possibly use the federal law to defend themselves against state enforcement action.

The guidelines list “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders” as possible emergency situations under the law.

Crucial Quote

“Today, in no uncertain terms, 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,” HHS Secretary Xavier Becerra said in a statement.

What To Watch For

It’s unclear how states that have moved to ban or sharply restrict abortion will respond to Monday’s guidance. Many states with abortion bans on the books have exceptions if the patient’s life is at risk, but their language is often vague, leading critics to warn of a chilling effect as healthcare providers are unsure of whether their patient is eligible for an abortion.

Key Background

Multiple states have enacted near-total abortion bans since last month, when the Supreme Court reversed Roe v. Wade and gave states the power to outlaw the procedure. Following the ruling, President Joe Biden has vowed to preserve abortion access for patients whose home states passed bans. In an executive order Friday, he directed HHS to find ways to protect emergency abortions and keep federally approved abortion medication available, and promised to defend patients’ right to travel out-of-state to get an abortion. Biden also wants Congress to codify Roe v. Wade into federal law, but the idea faces an uphill battle, as it lacks the support from Republicans necessary to clear the Senate’s 60-vote filibuster rule.