Providing abortion care is mandatory in emergencies despite state laws

The Justice Department said federal law requires doctors in states where abortion is illegal to perform the procedure under emergency circumstances. If a doctor or hospital refuses, both could be fined nearly $120,000 per violation. 

“We are closely following the new and uncertain landscape of state laws and enforcement actions, and will bring or participate in litigation where they infringe on federal protections,” Associate Attorney General Vanita Gupta told a group of lawyers at the White House Friday. “We’re all here today because we know we need to deploy legal assistance effectively, collaboratively and strategically.”

The Emergency Medical Treatment & Labor Act requires hospitals to assess and stabilize a patient regardless of their ability to pay. If they cannot, the hospital must transfer the patient to another hospital that can. 

In the wake of the Supreme Court’s Dobbs decision, the Centers for Medicare and Medicaid Services put out new guidance that states: “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 goes on to state: “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.”

The Inspector General for the Department of Health and Human Services may impose the $119,942 fine as a civil penalty for hospitals or doctors that do not provide “stabilizing” care or do not transfer the patient if they are not capable of providing the care. In addition to the civil penalty from HHS, the patients may sue the hospital and doctor for damages.

“We have seen reports of hospitals denying women necessary care for miscarriages and other medical emergencies. We have seen reports of pharmacies refusing to fill prescriptions for contraceptives,” Attorney General Merrick Garland told the attorneys. “The Justice Department recognizes this situation as the crisis that it is. We recognize the profound threats and devastating harms being posed not only to women’s health and safety but also to their civil rights.” 

The Department of Health and Human Services also released new guidance stating the Affordable Care Act requires private insurers in all states to cover birth control and emergency contraceptives at no additional cost.