The U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services said Tuesday that they are retracting federal guidance for 2022 to health care providers who specify that people should be able to access abortion in the event of a medical emergency, even if state laws limit such procedures.
According to the policy change announcement, previous guidance from the Biden administration does not “reflect the policies of this administration.”
The CMS added that it will continue to continue the federal emergency medical and labor law known as EMTALA, and designated its policy to include “identifying emergency medical conditions that put the health of a pregnant woman or fetus at serious risk.” However, it remains unclear what this change means for emergency care, especially in states with highly restricted abortion laws.
EMTALA requires that all US hospitals that receive Medicare money (essentially almost every hospital) screen everyone who comes to the emergency room to determine if they have an emergency medical condition regardless of their ability to pay for the service.
The 1986 law requires hospitals to maximize their capabilities and stabilize those with emergency medical conditions or move to another facility with the ability. Hospitals should also treat these patients “until the emergency condition is resolved or stabilized.”
Pregnant people were chosen in 1989 after reports that some hospitals had refused to care for uninsured working women. Congress has expanded EMTALA to include people who are pregnant and contracted.
In 2021, the Biden administration announced that it would strengthen Emtala’s obligations. It states that it is the physician’s duty to provide stabilized treatments that “we have an obligation to “preempt directly conflicting state laws or otherwise prohibit or prevent such treatment,” but did not specify whether abortion must be provided.
In July 2022, the US Supreme Court responded to Roev. A few weeks after overturning Wade, in a 1973 ruling that granted pregnant people the constitutional right to abortion, the Biden administration’s guidance made clear that EMTALA would include the need to implement stabilized abortion care when it is medically necessary to treat emergency medical conditions. If state law prohibits abortion and does not include exceptions regarding the lives or health of pregnant people, the law was preempted by federal law.
After the ROE was overturned, several states have passed highly restrictive abortion bans. According to the Guttmacher Institute, a research and policy organization focusing on sexual and reproductive health that supports abortion rights, there are 13 abortion bans. 28 states have abortion bans based on their gestational age. Seven bans 18 weeks or before pregnancy, 21 states ban abortion at some point after 18 weeks.
Idaho has one more restrictive law, making it a felony to have an abortion at every stage of pregnancy, unless it needs to save the life of a pregnant person.
In 2024, the U.S. Supreme Court formally dismissed an appeal against Idaho’s strict abortion ban. The decision was interpreted to mean that pregnant people should have access to abortion in a medical emergency under Emtala, but experts said that in reality, pregnant people are still denied care. Some doctors advised pregnant patients to purchase life aviation insurance in case the doctor is unable to treat them and the patient has to jump out of state.
In March, the Trump administration took a major step towards supporting the state with an abortion ban when it stopped a Biden-era lawsuit against Idaho that sought to protect abortion access in a medical emergency.
According to a Tuesday announcement from CMS, the agency will “work to correct the legal disruption and instability created by previous administration actions.”
US obstetricians and gynecologists and gynecologists are the professional organisation representing the majority of US practitioners, and were critical of the move.
“Retracting guidance clarifying protections for the care of pregnant people experiencing emergencies is an inadequate decision to undoubtedly put the lives and health of pregnant women who are facing difficulties to access the abortion care they need during obstetric complications,” said Molly Megan, the group’s chief legal officer and president, on Tuesday.
She said the announcement “deepens confusion” when emergency care is legal and exacerbates the “overwhelming barrier to care” for Americans.
“Abortion is an important part of healthcare and EMTALA protection should be provided to all patients who need emergency care, including abortion,” Megan said.
The ACLU, the Democratic Forward and the National Center for Women’s Law, and organizations that advocated the right to abortion during pregnancy, also criticised the new decision, characterising it as a “cave to anti-abortion allies,” calling it a reversal of Trump’s campaign pledge.
“The Trump administration cannot simply erase a 40-year law protecting patients’ lives with pen strokes,” said Alexa Corbi Molinas, deputy director of the ACLU’s Reproductive Freedom Project, in a statement.
No matter where a person lives in the United States, Corbi Morinas said they should have access to emergency medical care. ACLU “We will use all the levers that President Trump and his administration need to prevent our health and livelihoods from risking.”
Fatima Goss Graves, president and CEO of National Women’s Law Center, called on the administration’s hypocrites to promote a new American “Baby Boom” while deciding that the group is saying it’s putting people’s lives at risk.
“To be clear: this measure will not change the legal obligations of hospitals, but it adds to the fear, confusion and dangerous delays that patients and health care providers have faced since the collapse of Wade.,’ Graves said in a statement.