CMS Guidance on EMTALA and Abortion Raises New Issues for Hospital Emergency Services

According to guidance published by the Centers for Medicare and Medicaid Services (CMS) on July 11, 2022, EMTALA, the Emergency Medical Treatment and Labor Act of 1986, requires hospitals to provide abortion services when necessary to stabilize a pregnant patient’s emergency medical condition. Any state law that prohibits abortion in such circumstances, CMS declared, is “preempted,” or overridden, by EMTALA.

Although CMS’s guidance attempts to provide clarity following the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (Dobbs),[1] it also raises new legal questions and has already triggered at least one lawsuit.

CMS’s July 11, 2022 Guidance on EMTALA Obligations Affecting “Patients Who Are Pregnant or Are Experiencing Pregnancy Loss”

Most American hospitals and emergency physicians have become accustomed to EMTALA’s requirements regarding obstetrical emergencies. Now, perhaps unexpectedly, the US Supreme Court’s June 24, 2022, decision in Dobbs, by ending a federal constitutional right to abortion, has created significant uncertainty. Dobbs overturned the Supreme Court’s prior decisions in Roe v. Wade[2] and Planned Parenthood of Southeastern Pennsylvania v. Casey.[3] The decision leaves hospitals and physicians facing varying state abortion laws governing obstetrical emergencies, depending on where the facility is located. According to the CMS guidance, however, those state laws don’t necessarily matter: emergency providers remain subject to EMTALA’s minimum requirements applicable to abortion services.

Under EMTALA (which applies to all hospitals participating in Medicare), a hospital must screen an individual who comes to the emergency department seeking evaluation or treatment for a medical condition. If the hospital determines the individual has an “emergency medical condition,” the hospital must provide treatment necessary to “stabilize” the condition.

The statute defines both of those key terms. An “emergency medical condition” is a medical condition manifesting symptoms that are potentially so severe that an individual’s health could be in serious jeopardy.[4] To “stabilize” an emergency medical condition is to provide sufficient medical treatment necessary to ensure the condition will not significantly worsen during or after the individual’s transfer to another facility.[5] In the case of a pregnant woman having contractions, EMTALA provides that “active labor” is an emergency medical condition requiring delivery of the baby and the placenta.[6]

In guidance published on July 11, 2022, seeking to address Dobbs’s impact on the agency’s EMTALA enforcement, CMS explained that a hospital must perform an abortion when necessary to stabilize an obstetrical emergency in a patient who is pregnant but not yet in active labor. To this end, the US Department of Health and Human Services (HHS) Secretary Xavier Becerra emphasized in an accompanying July 11, 2022 letter that healthcare providers retain the discretion and clinical judgment to determine when emergency abortion may be necessary stabilizing treatment, “regardless of the restrictions in the state where [they] practice.”

Obstetrical Emergencies Potentially Requiring Abortion for Treatment

According to CMS’s July 11 guidance, emergency conditions for which stabilization may require abortion include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, and emergent hypertensive disorders (such as preeclampsia with severe features). Apart from abortion, CMS notes that such conditions could also be stabilized by the removal of one or both fallopian tubes, anti-hypertensive therapy, or methotrexate therapy.

For further insight into the clinical scenarios where emergency abortion may be medically necessary, the authors of this alert consulted with Greggory DeVore, M.D., a Clinical Professor in the Department of Obstetrics and Gynecology at the University of California, Los Angeles David Geffen School of Medicine. Dr. DeVore generally agreed with the CMS listing of emergency conditions where abortion is indicated. He noted, however, that abortion is typically not recommended for patients with severe preeclampsia or eclampsia because such conditions generally present when the fetus would likely be viable (i.e., after 24 weeks of pregnancy).[7] In addition, he identified as such conditions missed abortion (a type of miscarriage) and corneal pregnancy (when a fetus implants within a location of the uterus that could rupture).

How EMTALA May Preempt Contrary State Laws

Now that abortion regulation is primarily a matter of state authority in the wake of the Dobbs ruling, CMS also explained in its July 11 guidance that EMTALA takes precedence over any conflicting state laws: “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.”

In other words, CMS advises that when a pregnant patient presents to a hospital emergency department suffering from an emergency condition and abortion is necessary to stabilize the condition, abortion is permissible – regardless of whether state law forbids that procedure.

According to the Guttmacher Institute, all state abortion restrictions that became effective since Dobbs contain an exception permitting abortion if necessary to preserve the pregnant woman’s life. Some also contain an exception for the pregnant woman’s physical health. However, those state laws may define that concept – danger to life or health – differently than EMTALA does, according to CMS. For example, in CMS’s view, state abortion restrictions might prohibit an abortion where EMTALA would require abortion as stabilizing emergency treatment.

In such a scenario, a hospital and its medical personnel may find it impossible to comply with both EMTALA and their state’s abortion law. Where such conflicts of law arise, the federal law usually preempts the state law. In this situation, emergency providers would need to comply only with EMTALA.

In its guidance statement, CMS sought to address the concerns of physicians who comply with EMTALA instead of state law. Such physicians could themselves enforce EMTALA “in a variety of ways, potentially including as a defense to a state enforcement action, in a federal suit seeking to enjoin threatened enforcement, or, when a physician has been disciplined for refusing to transfer an individual who had not received the stabilizing care the physician determined was appropriate, under the statute’s retaliation provision.”

Physicians may respond to this part of CMS’s guidance with justifiable concern over the prospect of defending their emergency treatment decisions in federal court.

A Texas law exemplifies a potential conflict with EMTALA requirements. The Texas Human Life Prevention Act bans abortion but contains an exception for a pregnant female who “has a life-threatening physical condition” arising from the pregnancy that places her “at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”[8]

On its face, the Texas exception appears to be narrower and to cover fewer medical conditions than EMTALA’s broad definition of “emergency medical condition.” One significant ambiguity in the Texas statute relates to the patient’s mental health. Will the law’s definition of an emergency as a life-threatening physical condition also cover mental conditions? A treating physician may consider mental or emotional trauma an “emergency medical condition” under EMTALA, necessitating abortion as stabilizing treatment. There will be uncertainty until the question is resolved.

That resolution may soon come to federal court. Just days after CMS released its guidance, the State of Texas filed a complaint in federal court against CMS, HHS Secretary Becerra, and other federal officials, asking the court to hold CMS’s July 11 guidance unlawful and unenforceable.

First Amendment Implications for Religiously Affiliated Hospitals

CMS’s July 11 guidance raises another potential legal issue that may be litigated: To the extent the guidance requires a religiously affiliated hospital to conduct an abortion or other procedure in violation of the hospital’s religious tenets, does EMTALA violate the First Amendment to the US Constitution and its protection of the “free exercise” of religion?

For example, as some Catholic-affiliated organizations have already noted, CMS’s interpretation of EMTALA as mandating emergency abortion could conflict with the Ethical and Religious Directives for Catholic Health Care Services (the ERDs) issued by the US Conference of Catholic Bishops. The ERDs, which hospitals affiliated with the Catholic Church are bound to follow, state unequivocally that abortion, defined as the “directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus,” is “never permitted.”

A First Amendment challenge to CMS’s EMTALA enforcement policy could require courts to resolve contentious constitutional issues similar to those in lawsuits where religiously affiliated hospitals have alleged that the First Amendment protects them from being compelled to provide certain transgender-related healthcare services.[9] Notably, such a challenge to the CMS guidance could arise in any state – regardless of how liberalized or restrictive the state’s abortion laws are.

What This Means for Hospitals and Physicians

Even apart from the issue of emergency abortions, CMS has great authority in interpreting and applying EMTALA. Hospitals and physicians that fail to comply with EMTALA face significant penalties, including termination of their Medicare provider agreement (or exclusion from Medicare for physicians), substantial fines, and strict liability to patients who are harmed as a result. That broad federal authority may be disquieting for emergency departments and the physicians staffing them. They also may face liability exposure in cases involving pregnant women presenting with obstetrical emergencies in states with abortion laws more restrictive than EMTALA. Notwithstanding CMS’s attempt to bring clarity to this issue, complex clinical, legal, moral, and political dimensions remain. As hospitals review their EMTALA compliance policies against CMS’s July 11 guidance, they should consult legal counsel about how best to navigate these complexities in a post-Dobbs environment.

This alert is part of ArentFox Schiff’s ongoing commitment to monitor the impact of the US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization on health care providers, employers, and businesses.