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Doctors must offer abortion if mom's life at risk, says Biden administration

Federal law on emergency treatment guidelines pre-empts state laws

The Biden administration on Monday told hospitals that they “must” provide abortion services if the life of the mother is at risk, saying federal law on emergency treatment guidelines preempts state laws in jurisdictions that now ban the procedure without any exceptions following the Supreme Court's decision to end a constitutional right to abortion.

The Department of Health and Human Services cited requirements on medical facilities in the Emergency Medical Treatment and Labour Act, or EMTALA. The law requires medical facilities to determine whether a person seeking treatment may be in labour or whether they face an emergency health situation — or one that could develop into an emergency — and to provide treatment.

“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 agency's guidance states. “When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is pre-empted.”

The department said emergency conditions include “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as pre-eclampsia with severe features.”

Currently, even the states with the most stringent bans on abortion do allow exceptions when the health of a mother is at risk, though the threat of prosecution has created confusion for some doctors.

In a letter to health care providers, HHS Secretary Xavier Becerra wrote, “It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition pre-empts any directly conflicting state law or mandate that might otherwise prohibit such treatment.”

The department says its guidance doesn't reflect new policy, but merely reminds doctors and providers of their existing obligations under federal law.

“Under federal law, providers in emergency situations are required to provide stabilizing care to someone with an emergency medical condition, including abortion care if necessary, regardless of the state where they live,” said Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure. "CMS will do everything within our authority to ensure that patients get the care they need.”

Mississippi’s trigger law, which went into effect Thursday, says abortion will be legal only if the woman’s life is in danger or if a pregnancy is caused by a rape reported to law enforcement. It does not have an exception for pregnancies caused by incest.

When asked about the Biden administration’s new guidance, Michelle Williams, chief of staff to Mississippi Attorney General Lynn Fitch, pointed to the existing exception in Mississippi’s abortion law.

“Mississippi’s law already makes an exception for preservation of the mother’s life,” Williams told The Associated Press on Monday. “The Biden Administration’s statement of existing law today is about nothing more than maintaining the false narrative that women’s lives are in danger in order to appease his base.”

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