Following President Biden’s Executive Order to Protect Access to Reproductive Health Care, HHS Announces Guidance to Clarify that Emergency Medical Care Includes Abortion Services

Today, the U.S. Department of Health and Human Services (HHS) announced new guidance and communication to ensure all patients — including pregnant women and others experiencing pregnancy loss — have access to the full rights and protections for emergency medical care afforded under the law. This announcement follows President Biden’s executive order on reproductive health issued Friday.

HHS, through the Centers for Medicare & Medicaid Services (CMS), issued clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA) and reaffirmed that it protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations. In addition to the guidance, Secretary Xavier Becerra, in a letter to providers, made clear that this federal law preempts state law restricting access to abortion in emergency situations.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” said HHS Secretary Xavier Becerra. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care. Protecting both patients and providers is a top priority, particularly in this moment. Health care must be between a patient and their doctor, not a politician. We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”

“Everyone should have access to the health care they need — especially in an emergency,” said CMS Administrator Chiquita Brooks-LaSure. “Under federal law, providers in emergency situations are required to provide stabilizing care to someone with an emergency medical condition, including abortion care if necessary, regardless of the state where they live. CMS will do everything within our authority to ensure that patients get the care they need.”

The EMTALA statute requires that Medicare hospitals provide all patients an appropriate medical screening, examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. Stabilizing treatment could include medical and/or surgical interventions, including abortion. If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.

Read the Secretary’s letter to health care providers.

Read the EMTALA guidance issued.

Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Secretary Becerra announced HHS’s action plan to protect access to reproductive health care, including abortion care, which includes five priorities:

1. increasing access to medication abortion;
2. protecting patients and providers from discrimination, and ensuring privacy for patients and providers;
3. protecting emergency abortion care;
4. ensuring providers have family planning training and resources; and
5. strengthening family planning care, including emergency contraception.

Since the plan was announced, HHS has taken the following actions:

• Launched the ReproductiveRights.gov public awareness website, which includes a know-your-rights patient fact sheet;
• Convened a meeting with health insurers, and sent them a letter, calling on the industry to commit to meeting their obligations to provide coverage for contraceptive services at no cost as required by the Affordable Care Act; 
• Issued guidance to patients and providers that addresses the extent to which federal law and regulations protect individuals’ private medical information when it comes to seeking abortion and other forms of reproductive health care, as well as when it comes to using health information apps on smartphones;
• Announced nearly $3 million in new funding to bolster training and technical assistance for the nationwide network of Title X family planning providers; and

• Met with Michigan Governor Gretchen Whitmer, Oregon Governor Kate Brown, and Maine Governor Janet Mills and state attorneys general to discuss state-specific concerns.

HHS will take additional actions in the coming days.

HHS is committed to providing accurate and up-to-date information about access to and coverage of reproductive health care and resources. The Department’s goal is to make sure patients and providers have appropriate information and support.

Visit ReproductiveRights.gov to learn more about the care available to patients, and their right to that care.