On July 11, 2022, United States Secretary of Health and Human Services, Xavier Becerra, issued a letter to hospitals stating that the Federal Emergency Medical Treatment and Active Labor Act (EMTALA) requires physicians and other qualified medical personnel to provide stabilizing medical treatment to a pregnant patient who presents to the emergency department and is found to have an emergency medical condition. To the extent that the stabilizing medical treatment (e.g., pregnancy termination, removal of fallopian tube, anti-hypertensive therapy, methotrexate therapy) potentially violates a state abortion law, the Centers for Medicare & Medicaid Services (CMS) asserts that EMTALA preempts such state law.

In addition to the letter, CMS has issued guidance, Reinforcement of EMTALA Obligations Specific to Patients who are Pregnant or are Experiencing Pregnancy Loss, in which the agency further explains its rationale and emphasizes that providers are not excused from their obligation to stabilize an emergency medical condition because of fears that doing so may violate a state law prohibiting abortion or pregnancy termination.

EMTALA OBLIGATIONS

EMTALA requires that every patient who comes to a hospital emergency room be given a screening exam for an emergency medical condition. Under EMTALA, an "emergency medical condition" means a medical condition with acute symptoms of sufficient severity that, in the absence of immediate medical attention, could place the health of the pregnant patient in serious jeopardy, or result in a serious impairment or dysfunction of bodily functions or any bodily organ. The physician or other qualified provider is responsible for deciding whether an emergency medical condition exists.

Once an emergency medical condition exists, the hospital must provide stabilizing treatment within its capability and capacity. EMTALA requires that stabilizing treatment prevent material deterioration and compels hospitals and physicians to act prior to the patient’s condition declining. Determining the course of stabilizing treatment is also the responsibility of the physician or qualified medical personnel.

Since the U.S. Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization, and the activation in some states of new, more stringent laws prohibiting abortion in most cases, providers have become concerned that providing normal pregnancy care for emergencies of pregnancy (such as surgery to remove a tubal pregnancy) will violate those state laws. The CMS guidance makes it clear that CMS still expects providers to furnish such care, and they will be sanctioned under EMTALA if they do not.

CMS'S PREEMPTION CLAIMS

CMS has stated that when 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. There is language in the EMTALA statute that supports this position, and it certainly provides a potential defense if a provider is challenged for providing appropriate pregnancy care. At the same time, the language is very specific and it is not certain that a state prosecutor intent on enforcing a state abortion law would agree in every case. Ultimately, each case will rest on the specific facts involved, including a factual finding about whether there was a direct conflict between the provider's obligations under EMTALA and their obligations under the state law.

SUGGESTED ACTION STEPS

In states whose abortion laws have recently changed following the Dobbs decision, every hospital with an emergency room should have a policy about how to address pregnancy situations in which their state law and EMTALA obligations may conflict. The approach should be guided by

• the best medical judgment of the emergency and obstetrics members of your medical staff
• the exact language of the state law
• known or discoverable attitudes of local prosecutors
• the risk tolerance of both the hospital and its emergency and obstetric experts

Guidance issued by your state board of medical practice may also prove helpful. We recommend working with your health care counsel to establish such a policy before a patient in active crisis arrives in the emergency department.

This is an emerging area of the law and providers will need to remain vigilant and follow new developments as they occur.