The Trump administration rescinded guidance on Tuesday directing hospitals to perform abortions during medical emergencies, even in states with restrictive abortion bans.
The Biden administration published the guidance in 2022, shortly after Roe v. Wade was overturned, asserting doctors were required to perform emergency care, even if that included abortions, under the Emergency Medical Treatment and Labor Act.
The decades-old law states Medicare-funded hospitals must provide medical services when required to stabilize a patient’s life or health. The Biden administration argued patients experiencing an ectopic pregnancy, complications of pregnancy loss or emergent hypertensive disorders were entitled to stabilizing medical care under the federal law — including abortion services.
The CMS now says that guidance “does not reflect the policy of this Administration.” The new guidance is effective May 29, and furthers an executive order from President Donald Trump seeking to remove regulatory red tape, the CMS said.
There have been multiple signals the Trump administration might reverse course on EMTALA protections. During HHS Secretary Robert F. Kennedy Jr.’s confirmation hearings, he waffled on whether emergency abortions were federally legal in states with bans. Kennedy first said he didn’t know whether EMTALA would cover emergency abortions, before clarifying the next day that it did — but only in life-saving circumstances.
Then in March, the Justice Department dropped its Biden-era lawsuit seeking to require Idaho providers to offer emergency abortion care.
The CMS says it will continue to enforce EMTALA, including in cases where the health of a pregnant woman or her unborn child are in “serious jeopardy.” However, the agency did not offer specifics about what constitutes serious jeopardy.
Texas and Idaho, which have some of the nation’s most restrictive abortion bans, have repeatedly argued that there is no conflict between EMTALA and their policies, because both states allow abortion when the mother’s life is at risk.
“It has been our position from the beginning that there is no conflict between EMTALA and Idaho’s Defense of Life Act,” said Idaho Attorney General Raúl Labrador in a statement in March, after the DOJ dropped its case against the state. “The goal of each is to save lives in every circumstance, both the mother and their unborn child.”
However, providers and women’s health organizations say that in practice life-saving abortions do not occur in states with restrictive bans without EMTALA protections, in part due to confusion about when a provider is allowed to act.
Nancy Northup, president and CEO of the Center for Reproductive Rights, previously told Healthcare Dive that providers had resorted to airlifting hemorrhaging women out of states with abortion bans in order to receive emergency services when EMTALA protections were not in place.
A spokesperson for the CMS did not comment on whether the administration believed EMTALA would cover any emergency abortion services. However, the agency said it planned to “rectify any perceived legal confusion and instability created by the former administration’s actions.”
