CMS says EMTALA covers situations in which terminating a pregnancy is medically necessary

The Biden administration is trying to ensure hospitals know their statutory obligations to patients who present with emergencies — even if treating the emergency requires terminating a pregnancy.

After the Supreme Court ruled in June that the constitutional right to an abortion does not exist, some states moved to ban the procedure in most or all situations. While those states allow for exceptions if the life of the mother is endangered, about a half-dozen states with the strictest laws appear not to have exceptions for cases in which the mother’s physical health is considered to be at risk more generally (see this chart from the Guttmacher Institute).

In newly released guidance to its state survey agencies and during a July 12 stakeholder call, CMS clarified that the requirements of the Emergency Medical Treatment and Labor Act (EMTALA) supersede any state laws that prohibit the diagnosis or treatment of a pregnancy-related emergency.

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

A key point emphasized in the guidance and during the call is that physicians have authority to decide what constitutes an emergency based on EMTALA guidelines, along with what steps should be taken to address an emergency. Any stabilization measure can be undertaken at the physician’s discretion to prevent “a serious impairment or dysfunction of bodily functions or any bodily organ,” for example (see page 4 of the guidance for additional context on stabilization).

As examples of emergency conditions pertaining to pregnant patients, the guidance cites ectopic pregnancy and emergent hypertensive disorders.

“You do not have to wait for the condition to worsen in order to be protected by EMTALA,” a CMS official said during the stakeholder call.

Among other points that were discussed during the call:

• Per regulations, a hospital labor and delivery unit — or any unit — must adhere to EMTALA provisions if at least a third of its outpatient visits during the preceding calendar year were for the treatment of emergency medical conditions.
• A freestanding urgent care center or clinic is subject to EMTALA requirements if the facility’s billing and certification are under the aegis of a Medicare-certified hospital.
• EMTALA provisions apply to hospitals that are affiliated with religious institutions.

EMTALA protections and penalties

A CMS official noted during the call that “federal preemption of state restrictions [on abortion] could be enforced by individual providers in several different ways, including as a defense to a state enforcement action, in a federal suit seeking to enjoin threatened enforcement, or under the provision of EMTALA that protects providers from retaliation — if the provider, for example, refuses to transfer an individual who has not received the stabilizing care that the provider deemed appropriate.”

EMTALA violations may lead to the imposition of a civil monetary penalty or termination of a hospital’s Medicare and Medicaid agreement, and physicians likewise would be subject to fines and exclusion from Medicare and Medicaid, officials said.