Texas Sues CMS over Guidance Clarifying That EMTALA Includes Abortion Services
- July 15, 2022
The Centers for Medicare & Medicaid Services (CMS) issued July 11 guidance reiterating that the Emergency Medical Treatment and Labor Act (EMTALA) protects providers offering legally-mandated, life- or health-saving abortion services in emergency situations.
According to the guidance, emergency medical conditions involving pregnant patients may include ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia.
“Hospitals should ensure all staff who may come into contact with a patient seeking examination or treatment of a medical condition are aware of the hospital’s obligation under EMTALA,” the guidance said.
“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” according to the guidance.
The guidance also emphasized that “[w]hen a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”
Department of Health and Human Services Secretary Xavier Becerra also sent a letter to providers.
“As frontline health care providers, the federal EMTALA statute protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice,” the letter said.
The letter also reminded providers that EMTALA’s preemption of state law could be enforced by individual physicians in a variety of ways, including as a defense to a state enforcement action, in a federal suit seeking to enjoin threatened enforcement, or under the statute’s retaliation provision when a physician has been disciplined for refusing to transfer an individual who has not received the stabilizing care the physician determined was appropriate.
Texas Attorney General Ken Paxton announced July 14 that the state is suing the government over the guidance. "[T]he Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic. EMTALA does not authorize and has never been thought to authorize the federal government to require emergency healthcare providers to perform abortions," Paxton said in a press release.
According to the complaint filed in the Northern District of Texas, "President Biden is flagrantly disregarding the legislative and democratic process—and flouting the Supreme Court’s ruling before the ink is dry—by having his appointed bureaucrats mandate that hospitals and emergency medicine physicians must perform abortions."
The complaint alleges defendants exceeded the scope of their authority in issuing the guidance and asks the court to set it aside.