HHS: Hospitals Must Offer Abortion If Pregnant Person’s Life Is At Risk

The Biden administration told health care providers in a letter dated Monday that they “must” provide abortion services if the pregnant person’s life is at risk, saying federal law preempts state laws or mandates that have banned the procedure in the wake of the Supreme Court’s decision to overturn Roe v. Wade.

In its letter to health care providers, the Department of Health and Human Services (HHS) cited the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires medical facilities to determine whether a pregnant person seeking treatment may be in labor or whether they are in an emergency medical condition where an abortion is “the stabilizing treatment necessary to resolve that condition.”

“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,” HHS Secretary Xavier Becerra wrote. “When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

Becerra noted that 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.”

“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.

The letter by HHS comes a day after President Biden told reporters that he is weighing whether to consider declaring abortion access a public health emergency — a move that would appease some Democrats, but clashes with some in his administration who question its legality and effectiveness.

During a stop on a bike ride near his family’s Delaware beach house on Sunday, Biden told reporters that he lacks the authority to force states with strict restrictions or outright bans on abortion to permit the procedure. The President said Congress would need to codify the right to abortion access and that voters should elect lawmakers who support that right.

The President said his administration is trying to do a “lot of things to accommodate the rights of women” after the Supreme Court’s ruling that eliminated the right to abortion access, which includes weighing declaring a public health emergency to free up federal resources.

Biden said he has asked officials “to look at whether I have the authority to do that and what impact that would have.”