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No State Can Deny Abortion to Those Needing Emergency Care, Biden Admin Says

“Protecting both patients and providers is a top priority,” Health and Human Services Secretary Xavier Becerra said.

Abortion rights activists march to the White House to denounce the U.S. Supreme Court decision to end federal abortion rights protections on Saturday, July 9, 2022 in Washington, D.C.

The U.S. Department of Health and Human Services (HHS) issued new guidance on Monday clarifying that emergency medical care, including abortion care when needed, takes precedence over state laws that ban abortions, even when the health of a pregnant person is at risk

The new announcement from HHS, which cites the Emergency Medical Treatment and Active Labor Act (EMTALA), is part of a recent executive order issued by President Joe Biden directing the department to reexamine its guidance relating to providing abortion services for emergency health care situations.

“Protecting both patients and providers is a top priority, particularly in this moment,” HHS Secretary Xavier Becerra said in a statement. “Health care must be between a patient and their doctor, not a politician.”

Under the new guidance, “a physician’s professional and legal duty to provide stabilizing medical treatment to a patient who… is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment,” including if “abortion is the stabilizing treatment necessary to resolve that condition.” The new guidance also commands physicians across the U.S. to provide abortion services in emergency situations even if a state law says such an action is illegal.

“That state law is preempted,” the guidance says, by the federal EMTALA statute.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Becerra added in his statement.

Centers for Medicare & Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure also spoke out about the new guidance, saying in a statement that medical facilities are “required to provide stabilizing care to someone with an emergency medical condition, including abortion care,” if an emergency situation warrants it, “regardless of the state where they live.”

Hospitals or other medical facilities that refuse to abide by the new guidelines could lose their Medicare and Medicaid provider agreements. They could also face stiff civil penalties, and individual physicians or providers could also be fined if they violate the rules.

The fines are steep, meant to deter negligence of care — a physician, for example, who refuses to provide an emergency abortion where it’s warranted could be fined close to $120,000 per violation.

Beyond guaranteeing patients’ rights to receive an abortion in emergency situations, Biden’s executive order, which he signed last Friday, also directs the Food and Drug Administration to increase access to abortion medication. The order also aims to protect patients’ confidentiality and privacy rights, limiting who can access information on someone who received an abortion to prevent them from being punished in states with laws that prohibit abortions.

Some have argued, however, that the order doesn’t go far enough to fight back against encroachments on abortion rights. While the order does have good elements to it, these critics add, the Biden administration should have been better prepared to have dealt with the Supreme Court overturning abortion rights protections, as a leaked document in May had alerted the country to the high possibility that such an action by the Court was imminent.

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