This week, nearly two dozen state attorneys general told hospitals they are still obligated under law to provide emergency abortion care services despite the federal government’s apparent shift on the issue.
Late last month, the Centers for Medicare & Medicaid Services (CMS) rescinded guidance issued in 2022 that described stabilizing abortion care as a requirement under the Emergency Medical Treatment and Labor Act (EMTALA), which preempts state law. The Biden administration had outlined that position in the wake of the Supreme Court’s Dobbs v. Jackson decision, which set off a wave of state legislation restricting abortion.
The letter, signed by 22 blue state legal officers and sent to the American Hospital Association, acknowledged the pulled guidance but told hospitals that “nothing about CMS’ recission of its 2022 guidance changes the statutory text of EMTALA, which requires abortion care in specified circumstances.”
To underscore the point, the attorneys general pointed to a letter accompanying the rescindment in which Department of Health and Human Services Secretary Robert F. Kennedy Jr. noted that “the law has not changed.”
“And,” they wrote, “while that letter needlessly attempts to sow confusion by focusing on protections for a pregnant patient’s ‘unborn child,’ nothing about the rescission of the guidance changes the fact that EMTALA’s requirement to provide stabilizing care is based on the medical condition of the pregnant patient, not the fetus.”
The attorneys general also noted that their position was not rejected by the top court when tested in 2024—though that case was dismissed on procedural grounds rather than on the merits of the Biden administration’s arguments that abortion services are included alongside other emergency services in the federal statute preempting state law.
That particular argument is currently making its way through multiple federal courtrooms and could well find its way back to the Supreme Court. And, in March, the Department of Justice under President Donald Trump’s administration dropped its supporting position in one such case challenging the reach of Idaho’s antiabortion law. (The case has been taken up by a nonprofit health system operating in the state.)
The step away from explicit emergency abortion support was signaled early on during the president’s return to office. Jan. 25, he signed an executive order resuming enforcement of the Hyde Amendment, a provision that prohibits using federal programs like Medicaid to pay for abortions, and pulled a Biden order that categorized abortion as healthcare. Still, a primer at the time specified that statutes protecting access to emergency medical care for pregnant women under EMTALA remained in full effect.
The legal ambiguity for hospitals in abortion-restricting states has had direct health consequences, the attorneys general wrote in their letter. They cited reports of elevated sepsis rates in Texas among hospitals that delayed providing abortions or other interventions to miscarrying patients after the state’s six-week abortion ban went into effect and underscored a highly publicized case in which a Texas mother died of infection after abortion care was delayed.
“The devastating consequences of denying medically necessary abortion care to pregnant patients are a stark reminder of the importance of EMTALA’s requirements—and the importance of ensuring continued compliance with those requirements,” they wrote.
Though they did not threaten any specific legal action, the attorneys general closed their letter by pointing out the parallel requirements many of their states have passed as state laws and writing that they “stand ready to work together to ensure that every pregnant patient across the country receives the necessary and lifesaving health care that federal and state law require.”