Hospitals must provide emergency abortion care under EMTALA

EMTALA was passed in 1986 to prevent hospitals from refusing emergency care to patients who couldn't pay. Following the overturning of Roe v. Wade in Dobbs v. Jackson, the federal government issued guidance saying that EMTALA provided federal protections to providers performing abortions in emergency situations, even in states with abortion restrictions. 

In a letter, HHS Secretary Xavier Becerra told providers that their "clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients" will be protected under EMTALA.

However, healthcare providers have had difficulty determining how state laws around abortion interact with EMTALA's mandate to stabilize any patients in a medical emergency, including when performing an abortion if it's necessary to protect a woman's bodily functions or organs.

According to Mary Ellen Palowitch, a senior managing director at Dentons and former EMTALA technical lead at CMS, "[t]he focus has been on elective abortions, but these emergency situations happen often … Women miscarry and have other emergencies, and it's going to be up to the health system, hospital leadership and people who work in the emergency departments on how they'll respond if there's potential civil or criminal liability."

Pregnant patients claim hospitals denied them necessary care

Since 2022, more than 100 pregnant people in medical distress who sought help from EDs were either turned away or received negligent treatment, according to an analysis of federal hospital investigations by the Associated Press. These violations occurred in states both with and without abortion bans.

Dara Kass, an emergency medicine doctor and former HHS official, said that shortages of nurses and doctors, difficulty staffing around-the-clock ultrasounds, and new abortion laws are making EDs more dangerous for pregnant people.

"It is increasingly less safe to be pregnant and seeking emergency care in an emergency department," Kass said

Two women in Texas have filed complaints against hospitals for allegedly denying them care for ectopic pregnancies, which they say violated federal law and put their lives at risk.

In a complaint to HHS, Kyleigh Thurman said that a hospital in Round Rock, Texas, discharged her without treating her ectopic pregnancy or transferring her to another hospital in February 2023. She also said she was denied treatment when she returned to the hospital a few days later with vaginal bleeding.

According to Thurman, the delay in care led her fallopian tube to rupture, and she was only treated after her ob/gyn "pleaded" with hospital staff to provide her with the necessary care.

"For weeks, I was in and out of emergency rooms trying to get the abortion that I needed to save my future fertility and life," Thurman said. "None of this should have happened to me, and I want to make sure this doesn't happen to anyone else."

Separately, Kelsie Norris-De La Cruz said that a hospital in Arlington, Texas, discharged her without treating her ectopic pregnancy or transferring her to another hospital. After seeking a second opinion within hours, she was rushed into emergency surgery at a different hospital.

"The doctors knew I needed an abortion, but these bans are making it nearly impossible to get basic emergency healthcare," Norris-De La Cruz said. "I'm filing this complaint because women like me deserve justice and accountability from those that hurt us."

The Center for Reproductive Rights, which is representing the two women, says that while Texas law doesn't consider termination of ectopic pregnancies abortion, the strict penalties involved with abortion care in the state can prevent doctors from treating patients with ectopic pregnancies. Currently, providers in Texas could face up to 99 years of prison if convicted of performing an illegal abortion.

"As fearful as hospitals and doctors are of running afoul of these state abortion bans, they also need to be concerned about running afoul of federal law," said Marc Hearron, an attorney at the organization. Hospitals that violate federal law could face an investigation, significant penalties, and threats to their Medicare funding.

Advisory Board's maternal health resources

For more insights into issues surrounding maternity care, check out Advisory Board's library of resources, including:

We have several resources on the top drivers of change in the maternal and reproductive health market, as well as the outlook for the women's health service line.

To learn more about ways to improve maternal health in the United States, this report outlines six key factors to take into consideration, including the roles of various healthcare stakeholders and the importance of cross-industry collaboration.

Advisory Board also has several resources on how to utilize technology in maternity care, including this cheat sheet on telehealth and maternity care and a case study on how digital solutions can improve access to maternity care.

For resources specifically related to abortion, we offer this infographic explaining the potential health outcomes for individuals denied abortions in their state, as well as an expert insight on the groups that are disproportionately impacted by abortion restrictions. This expert insight also explains how leaders can help their clinical workforce amid changing abortion laws. (Vinall, Washington Post, 8/13; Seitz, Associated Press, 8/12)