Hospitals must provide abortions in medical emergencies, HHS says

Secretary Xavier Becerra told providers federal law supersedes state laws restricting abortion. Providers that don't follow the law could lose federal funds.

President Joe Biden’s administration is telling hospitals and health systems that they must offer abortion procedures when patients face medical emergencies, regardless of any state restrictions.

The U.S. Department of Health and Human Services issued the guidelines Monday, a few days after the president issued an executive order on abortion rights.

HHS Secretary Xavier Becerra sent a letter to providers spelling out that the federal Emergency Medical Treatment and Active Labor Act protects providers when offering abortions to protect the life or heath of patients.

Becerra also spelled out that federal law supersedes state laws restricting abortion in emergency situations.

“It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment,” Becerra wrote to providers.

The secretary also spelled out circumstances where providers could provide abortions, notably saying providers weren’t limited to those events.

“Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features,” he wrote.

Providers can also undertake medical or surgical interventions “irrespective of any state laws or mandates that apply to specific procedures,” Becerra wrote in the letter.

The health department took its message to social media, posting a message on Twitter saying, “If an abortion is necessary to save a pregnant person’s life or prevent serious jeopardy to the patient’s health, the federal laws supersede any state law prohibiting abortion.”

In the letter, Becerra also warned providers that if they don’t adhere to the federal law in emergencies, they could face financial penalties and the termination of their Medicare agreement.

Becerra pledged to protect patients seeking emergency medical attention.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Becerra said in a statement.

“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,” Becerra said. “Protecting both patients and providers is a top priority, particularly in this moment. Health care must be between a patient and their doctor, not a politician.”

Several states have already prohibited abortion after the Supreme Court overturned Roe v. Wade last month. Within the next several months, roughly half of all states are expected to end access to abortion services, with very limited exceptions.

Healthcare organizations widely denounced the Supreme Court ruling that found there’s no constitutional right to an abortion. Health groups have criticized state laws barring abortion, saying the measures will endanger patients and worsen health disparities, since many women won’t be able to afford to travel to other states to get an abortion.

Some states with abortion bans have exceptions to save the mother’s life. In Texas, doctors can perform abortions to save a patient or if there’s a “substantial impairment of major bodily function.” Some healthcare groups have warned that such provisions leave providers and clinicians potentially weighing when the risk is severe enough that they can perform abortions.

In his letter to providers, Becerra wrote that if a patient is facing an emergency and an abortion is needed to stabilize the patient, “the physician must provide that treatment.”

Becerra has previously warned hospitals to protect the privacy of patients.

Biden’s emergency order doesn’t overturn any state laws barring abortion services. His executive order directs HHS to expand access to medication abortion and contraception, along with public education efforts on abortion rights. Biden’s order also directed the Federal Trade Commission to protect the privacy of consumers seeking information about reproductive healthcare services.

The Food and Drug Administration has also received its first-ever application for an over-the-counter birth control pill. HRA Pharma, a company based in France, submitted the application.

The American College of Obstetricians and Gynecologists says it has long supporting allowing Americans access to birth control pills without a prescription.

Iffath Abbasi Hoskins, the group’s president, touted the benefits of over-the-counter access. “It will enable people to begin using contraception when they are ready; it will provide them with a bridge between clinician-supported contraception plans; and it will help them overcome existing financial, societal, and personal barriers,” Hoskins said in a statement.