Trump administration rolls back guidance specifying that ERs must offer abortion care when necessary
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The US Department of Health and Human Services and the Centers for Medicare & Medicaid Services said Tuesday that they were rescinding 2022 federal guidance to health care providers specifying that people should be able to access an abortion in the event of a medical emergency, even if state laws restrict such procedures.
The previous guidance from the Biden administration does not 'reflect the policy of this Administration,' according to an announcement of the policy change.
CMS added that it will continue to enforce the federal Emergency Medical Treatment and Labor Act, known as EMTALA, and it specified that the policy included 'identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.' However, it remains unclear exactly what the change will mean for emergency care, particularly in states with highly restrictive abortion laws.
EMTALA requires all US hospitals that have received Medicare money — essentially nearly all of them — to screen everyone who comes into their emergency rooms to determine whether the person has an emergency medical condition without regard for their ability to pay for services.
The 1986 law also requires hospitals, to the best of their ability, to stabilize anyone who has an emergency medical condition or to transfer them to another facility that has that capacity. The hospitals must also treat these patients 'until the emergency medical condition is resolved or stabilized.'
Pregnant people were singled out in 1989, after reports that some hospitals were refusing to care for uninsured women in labor. Congress expanded EMTALA to specify that it included people who were pregnant and having contractions.
In 2021, the Biden administration released the Reinforcement of EMTALA Obligation, which says it is a doctor's duty to provide stabilizing treatment that 'preempts any directly conflicting state law or mandated that might otherwise prohibit or prevent such treatment,' although it did not specify whether an abortion had to be provided.
In July 2022, weeks after the US Supreme Court overturned Roe v. Wade, the 1973 ruling that gave pregnant people a constitutional right to an abortion, the Biden administration's guidance further clarified that EMTALA included the need to perform stabilization abortion care if it is medically necessary to treat an emergency medical condition. If a state law banned abortion and did not include an exception for the life or health of the pregnant person, that law was preempted by the federal statute.
After Roe was overturned, several states passed highly restrictive abortion bans. Thirteen have total abortion bans, according to the Guttmacher Institute, a research and policy organization focused on sexual and reproductive health that supports abortion rights. Twenty-eight states have abortion bans based on gestational duration: seven ban it at or before 18 weeks' gestation, and 21 states ban abortion at some point after 18 weeks.
Idaho has one of the more restrictive laws, making it a felony to perform an abortion at any stage of pregnancy unless it was necessary to save the life of a pregnant person.
In 2024, the US Supreme Court formally dismissed an appeal over Idaho's strict abortion ban. The decision was interpreted as meaning that pregnant people should be able to access an abortion in a medical emergency under EMTALA, but experts said that in reality, pregnant people were still being denied care. Some doctors even advised pregnant patients to buy life flight insurance in case they had an emergency complication that the doctors could not treat and the patient had to be flown out of state.
In March, the Trump administration took a major step in support of states with abortion bans when it dropped a Biden-era lawsuit against Idaho that sought to protect abortion access in medical emergencies.
Tuesday's announcement from CMS says the agency will 'work to rectify any perceived legal confusion and instability created by the former administration's actions.'
The American College of Obstetricians and Gynecologists, a professional organization that represents the majority of practitioners in the United States, was critical of the move.
'Rescinding guidance clarifying protections for the care of pregnant people experiencing emergencies is a poor decision that will undoubtedly endanger the lives and health of pregnant women, who are already facing difficulties accessing needed abortion care during obstetrical complications,' Molly Meegan, the group's chief legal officer and general counsel, said in an email Tuesday.
She said the announcement will 'deepen confusion' about when emergency care is legal and exacerbate 'overwhelming barriers to care' for people across the US.
'Abortion is an essential part of medical care, and EMTALA protections should be afforded to all patients in need of emergency care, including abortion,' Meegan said.
The ACLU, Democracy Forward and the National Women's Law Center, organizations that have advocated for pregnant people's right to an abortion, were also critical of the new decision, characterizing it as 'caving to its anti-abortion allies' and saying it's a reversal of Trump's campaign pledge that he wouldn't interfere with abortion access.
'The Trump administration cannot simply erase four decades of law protecting patients' lives with the stroke of a pen,' Alexa Kolbi-Molinas, deputy director of the ACLU's Reproductive Freedom Project, said in a statement.
No matter where a person lives in the United States, Kolbi-Molinas said, they should have access to emergency care, and the ACLU will 'use every lever we have to keep President Trump and his administration from endangering our health and lives.'
Fatima Goss Graves, president and CEO of the National Women's Law Center, called the administration hypocritical for its push for a new American 'baby boom' while making a decision that the group says will put people's lives at risk.
'To be clear: this action doesn't change hospitals' legal obligations, but it does add to the fear, confusion, and dangerous delays patients and providers have faced since the fall of Roe v. Wade,' Graves said in a statement.
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