HHS clarifies: All US hospitals must provide abortions in emergency cases

HHS issued guidance to hospitals July 11 to clarify that abortion is covered under the federal law requiring Medicare hospitals to provide all patients appropriate emergency care — including abortion care — regardless of state law.

The announcement followed President Joe Biden's executive order on reproductive health issued July 8.

The Emergency Medical Treatment and Labor Act was enacted in 1986 by Congress to require that Medicare hospitals provide all patients an appropriate emergency care — including medical screening, examination, stabilizing treatment and transfer, if necessary — irrespective of any state laws or mandates that apply to specific procedures. If a hospital is in a state that prohibits abortion by law and does not make exceptions for the health or life of a pregnant person, EMTALA preempts that state law.

HHS enforces EMTALA through CMS and a complaint-driven process. Complaints initiate the investigation of a hospital's procedures, processes, or the actions of medical personnel, and any subsequent sanctions are initiated by a complaint. If the investigation finds a hospital violated one or more of the provisions of the act, the hospital may be subject to termination of its Medicare provider agreement and the imposition of civil monetary penalties.

HHS Secretary Xavier Becerra's July 11 letter to healthcare providers clarifying EMTALA's coverage of abortion can be found in full here.

The U.S. Supreme Court issued its decision June 24 in Dobbs v. Jackson Women’s Health to overturn Roe v. Wade, eliminating the federal standard protecting the right to abortion. Abortion is now banned or soon to be banned in 10 states. Kaiser Family Foundation has created a state-by-state listing of abortion policies, which can be found here

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