On July 11, 2022, at the direction of the U.S. Department of Health and Human Services (HHS), the Centers for Medicare & Medicaid Services (CMS) issued a memorandum to State Survey Agency Directors reminding them of their continuing federal obligations under the Emergency Medical Treatment and Labor Act (EMTALA) when treating pregnant patients.
The guidance was issued in the wake of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, following which many states have enacted legislation prohibiting or restricting abortion. In the memorandum, CMS clarifies for hospitals and healthcare providers that their professional and legal duties under EMTALA preempts any state law or mandate that is directly in conflict with EMTALA, even if doing so requires performing an abortion to medically stabilize the patient in a state where abortion is not allowed. In other words, the obligations under EMTALA trump the obligations under any state’s law when the two are in conflict with one another. Read together, hospitals and healthcare providers have a continuing professional and legal duty to provide all medically necessary stabilizing treatment to a pregnant woman presenting with an emergency medical condition (EMC) as defined under EMTALA, irrespective of whether that treatment violates the state’s abortion laws.
The determination of whether an EMC exists is made by the examining physician(s) or other qualified medical personnel at the hospital and is left to his/her clinical judgment. An EMC includes medical conditions with acute symptoms of sufficient severity that could place the patient’s health in serious jeopardy in the absence of immediate medical attention necessary to stabilize the patient. For a pregnant patient, this includes active labor, abdominal pain resulting from an ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders including preeclampsia. However, being pregnant is not in and of itself an EMC – the trigger is the pregnant patient’s need for medical evaluation/screening and stabilization.
Therefore, when a pregnant patient presents to an emergency room, and the examining provider’s clinical judgment determines that an EMC exists, EMTALA allows the hospital to perform an abortion, if it is within the hospital’s capabilities, and if it would be the appropriate stabilizing treatment that is medically necessary to reasonably assure that there will be no material deterioration of the EMC, or the patient, regardless of whether state law prohibits an abortion.
It is imperative that hospitals and healthcare providers recognize that their professional and legal duties under EMTALA are not usurped by state laws banning abortion, and that failure to comply with the federal law may result in civil monetary penalties by the Office of the Inspector General or exclusion from Medicare and State healthcare programs. CMS may also penalize a hospital by terminating its provider agreement. Additionally, failure to comply can result in civil suits filed by private citizens who are harmed by the hospital or healthcare provider’s failure to perform medically necessary stabilizing treatment to prevent the patient’s deterioration.
Thus, it is critical that hospitals and healthcare providers understand the protections afforded under EMTALA and consult legal counsel with any questions regarding their rights and obligations.