The Centers for Medicare & Medicaid Services (CMS) has pulled Biden-era guidance telling hospital emergency departments to provide abortion services as stabilizing care regardless of state law.
The rescindment was announced by the Trump administration but has been in effect since May 29, according to an updated version of the July 11, 2022, memo. Also rescinded is a July 11, 2022, letter to healthcare providers from former CMS Administrator Xavier Becerra describing the prior administration’s expectations regarding emergency abortion care.
Former President Joe Biden’s CMS had issued the guidance shortly after the Supreme Court’s Dobbs v. Jackson decision that paved the way for states to pass antiabortion legislation.
It outlined the prior administration’s view that lifesaving abortion falls within the requirements of the federal Emergency Medical Treatment and Labor Act (EMTALA), which preempts state law. That position has been at the heart of high-profile litigation on the issue, including a case related to an Idaho abortion law that resulted in a temporary stay from the Supreme Court.
The CMS said the guidance and letter “do not reflect the policy of this Administration.”
“CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy,” the agency wrote in Tuesday’s statement. “CMS will work to rectify any perceived legal confusion and instability created by the former administration’s actions.”
The rescindment was celebrated by Sen. Cindy Hyde-Smith, R-Miss., who chairs the Senate Pro-Life Caucus. In a statement, she said the Biden administration’s position had “created widespread confusion in emergency rooms nationwide” and that the rescindment brought “much-needed clarity.”
“EMTALA is a decades-old statute that was originally designed to protect mother-patients and their unborn children in emergency situations, but the Biden administration manipulated the law’s purpose by issuing guidance that forced emergency room doctors to perform abortions, regardless of their states’ life-affirming laws,” she said.
Similar praise also came from the Alliance Defending Freedom, an advocacy group with attorneys that were representing the Catholic Medical Association in litigation against the guidance. The group said it is filing for a voluntary dismissal of the lawsuit and said the move reinforces “the plain words of the statute: EMTALA protects both the ‘pregnant woman’ and the ‘unborn child.’"
The American Civil Liberties Union, which had recently moved to intervene in that case as a defendant, in a statement called the rescindment “yet another clear sign the administration is caving to its anti-abortion allies and reneging on President Trump’s campaign promises that his administration would not interfere with abortion access.”
That statement, which was joined by leaders of the National Women’s Law Center and Democracy Forward, said pulling the guidance does not change providers’ legal obligation and will sow confusion that endangers pregnant patients.
“Stripping away federal guidance affirming what the law requires will put lives at risk,” Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in the statement. “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.”
The decision to rescind isn’t much of a surprise given the Trump administration’s actions on abortion and EMTALA abortion alike.
Jan. 25, the president 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 along with other moves applauded by abortion opponents. Still, a primer at the time specified that statutes protecting access to emergency medical care for pregnant women under EMTALA remained in full effect.
In March, however, court filings showed that the Department of Justice was pulling out of the case on whether Idaho’s law limiting abortions was preempted by EMTALA. The case was taken up by a nonprofit health system.
More recently, the administration reaffirmed its position defending against a multiyear legal challenge of Food and Drug Administration actions that expanded access to mifepristone, a widely used abortion drug. Still, that defense addressed whether plaintiffs had standing rather than the merits of the case.