Following Supreme Court ruling, Biden administration asks doctors to perform emergency abortions

WASHINGTON — The Biden administration told emergency room doctors they must perform emergency abortions when necessary to save a pregnant woman’s health, following last week’s Supreme Court ruling that failed to resolve a legal dispute over whether state abortion bans override a federal law requiring hospitals to provide stabilizing treatment.

In a letter sent Tuesday to physician and hospital associations, Health and Human Services Secretary Xavier Becerra and Centers for Medicare and Medicaid Services Director Chiquita Brooks-LaSure reminded hospitals of their legal obligation to offer stabilizing treatment, which could include abortions. A copy of the letter was obtained by The Associated Press.

“No pregnant woman or her family should have to worry about being denied the treatment they need to stabilize their emergency medical condition in the emergency room,” the letter said.

And yet, we have heard many stories describing the experiences of pregnant women presenting to hospital emergency rooms with urgent medical issues and being turned away because medical providers were unsure of what treatment they were authorized to provide.

The CMS will also resume investigating complaints against Idaho emergency departments, after the Supreme Court ruled last week that hospitals in that state must be allowed to perform emergency abortions for now, despite the state’s abortion ban.

But enforcement of the law in Texas, the nation’s most populous state where abortion is strictly prohibited after six weeks, will still be suspended due to a lower court ruling.

The letter is the latest attempt by the Biden administration to draw attention to a 40-year-old federal law that requires nearly all emergency departments — all those that receive Medicare funding — to provide stabilizing treatment to patients in the event of a medical emergency. When hospitals refuse to provide that care or fail to provide it, they face federal investigations, hefty fines and the loss of Medicare funding.

The emergency room is the latest place where the White House has argued it can federally require rare emergency abortions to be performed, despite strict state bans on them. After Roe v. Wade was overturned in 2022, which stripped American women of their constitutional right to abortion, HHS quickly sent letters to doctors telling them they were required to perform abortions in emergency medical situations, when they were necessary to keep a woman medically stable.

An AP investigation found that complaints about pregnant women being turned away from emergency rooms increased in 2022 after the U.S. Supreme Court overturned Roe, raising concerns about emergency pregnancy care in states that have passed strict abortion laws.

In Idaho, the application of federal law in emergency abortion cases has been suspended since January, when the state’s strict abortion ban went into effect. Idaho’s state law threatens doctors with prison time if they perform an abortion, except in cases where the pregnant woman’s life, not her health, is at risk.

The Biden administration has argued that the law conflicts with a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA). Each year, about 50,000 women develop serious pregnancy-related complications, such as blood loss, sepsis or organ failure. Some of these women may end up in emergency rooms, and in the most severe cases where the fetus is unlikely to be viable, doctors may recommend terminating the pregnancy.

For example, if a woman’s water breaks during the second trimester, a condition known as premature rupture of membranes, the fetus may not be viable and continuing the pregnancy means the patient is at risk of developing sepsis, an infection that can be fatal.

Texas is also suing the Biden administration over its guidance on the law. The Justice Department has appealed a lower court ruling that said the law could be enforced to the Supreme Court, which could decide to take up the case later this year.

HHS has also sought in recent months to make it easier to file complaints against hospitals about any patients who were turned away or improperly transferred. Earlier this year, CMS unveiled a new webpage that allows anyone to file a complaint using a simple three-step process.

The complaint webpage will also be available in Spanish, starting today.

“We will continue to build on our recent actions to inform the public of their rights to emergency medical care and to help support the efforts of hospitals and health care professionals to meet their obligations under EMTALA,” the letter said.