By Federal guidance that the Trump administration says is intended to offer clarity is instead leaving health care providers even more confused about whether they can provide an abortion in an emergency, particularly in states with strict abortion laws.
This month, the Trump administration rescinded 2022 federal guidance specifying that under the Emergency Medical Treatment and Labor Act, or EMTALA, people should be able to get an abortion if a medical emergency makes it necessary, even in states with laws that restrict such procedures. HHS and the Centers for Medicare & Medicaid Services said they would continue to enforce the federal law, specifying that the policy included emergency medical conditions that placed the health of a pregnant woman or her unborn child in serious jeopardy.
Then, in a letter to health care providers last week, US Health and Human Services Secretary Robert F. Kennedy Jr. emphasized that under EMTALA, stabilizing care should be given to a person who is pregnant and having a medical emergency – but it doesn’t specify what that care might involve.
In the June 13 letter, Kennedy says that it was the 2022 memo that “created confusion. But that is no more.”
Some doctors beg to differ.
It’s unclear exactly what the recision of the previous guidance meant for emergency care, particularly in states with highly restrictive abortion laws, some doctors said. The latest letter doesn’t mention abortion at all — and the absence of specifics is creating more uncertainty.
“I do think this just contributes to all of the chaos that clinicians are having to deal with as they just attempt to take care of the patient in front of them and navigate state laws and federal guidance to provide care for patients,” said Dr. Nisha Verma, a practicing obstetrician-gynecologist and senior adviser for reproductive health policy and advocacy at the American College of Obstetricians and Gynecologists, a professional organization that represents the majority of practitioners in the United States. “It’s not something you want to get wrong, because the consequences are so severe and it feels so scary.”
Verma appreciates that the new letter from Kennedy clarifies that EMTALA is still the law of the land, even after the administration rescinded the 2022 guidance. But without a specific mention of abortion, she said, the nation’s patchwork of laws makes it difficult for doctors to navigate emergency situations. Some of those state laws could even send doctors to jail if they make the wrong decision about when an emergency necessitates an abortion.
“I think it was helpful to specify abortion is covered under EMTALA” in the 2022 guidance, Verma said. “I do think that having that language specifically in this really scary, chilling environment was helpful.”
Dr. Alison Haddock, an emergency room doctor who is president of American College of Emergency Physicians, said she was happy that Kennedy’s letter confirmed that pregnant patients need access to care and that it included examples of common problems like miscarriages, ectopic pregnancies and premature rupture of membranes.
“Those are some of the situations that have been really challenging for our physicians. Noting that those can represent an obstetric emergency where EMTALA would apply is really good to see,” Haddock said.
But she added that the Trump administration’s guidance does not clear up everything.
“I think physicians are still going to have issues with conflicting state law where they are still going to be left in a gray area of uncertainty about how to balance adhering to EMTALA and adhering to state law, and that’s going to leave patients in the same place,” Haddock said.
Trips to the emergency room are common for pregnant people, studies show. The majority of emergency providers say they treat pregnant patients in virtually every shift, according to the American College of Obstetricians and Gynecologists, and in some circumstances, treatment to protect a pregnant person’s health or life may require an abortion.
Pregnancy emergencies don’t always happen during standard work hours, Haddock said, and the “ability to convene the ethics committee at 2 a.m. is very limited, and then it can be a lot of layers to get through at the hospital.”
Haddock said her association sent a letter to its members encouraging them to advocate for clearer guidance from their own hospitals.
“Achieving greater clarity on this is really important to make sure physicians feel like they have the protections they need to provide lifesaving medical care,” she added.
‘Clinicians feel paralyzed’
Specifics have been important when it comes to EMTALA. When it became federal law in 1986, some hospitals refused to care for uninsured women in labor, so in 1989, Congress spelled out that pregnant people who were having contractions had to be given emergency care even if they couldn’t pay for it.
In 2021, guidance from the Biden administration added more specifics, saying it was a doctor’s duty to provide stabilizing treatment that “preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment.”
However, it wasn’t until the 2022 guidance that it was spelled out that an abortion had to be provided when necessary.
The Biden administration guidance was meant to eliminate confusion in states with anti-abortion laws that did not include an exception for the life or health of a pregnant person, and it stated that federal law preempted the state statutes in the case of such laws.
That memo was issued just weeks after the US Supreme Court overturned Roe v. Wade, the 1973 ruling that gave pregnant people a constitutional right to an abortion.
A case before the court last year would have clarified whether federal law requires health care services to provide access to emergency care in every state, regardless of abortion laws, but the high court sent it back to the lower courts. In March, the Trump administration dropped the lawsuit. Some legal experts interpreted that as a signal that the administration would not enforce EMTALA.
Even when the 2022 guidance was in place, provider surveys in states that criminalized abortion found that doctors were operating in “chaos and confusion,” said Payal Shah, director of research, legal and advocacy with the Physicians for Human Rights a Nobel Peace Prize-winning medical and human rights organization. Providers were still having a hard time determining whether EMTALA really would protect them if they had to perform an abortion, even in an emergency situation.
“Criminalization causes fear, and then clinicians feel paralyzed,” Shah said. “They don’t feel like they have the authority to make decisions about reproductive health care in line with their medical judgment and medical ethics and pregnant patients’ preferences. Instead, it becomes a legal decision.”
After the Dobbs decision removed the federal right to an abortion in 2022, some women died after doctors told them it would be a “crime” to intervene in a miscarriage or they couldn’t access timely medical care. Idaho’s strict abortion law has led some doctors to tell pregnant patients that they should consider buying “life flight insurance” in case a local hospital wouldn’t be able to take care of a pregnancy complication.
Rescinding the 2022 guidance will probably make stories like these more common, several experts said.
“Rescinding this guidance serves no purpose other than to try to strengthen or deepen that confusion,” Shah said. “This is an attempt to gaslight the American public and to say that criminalization of abortion is working. Criminalization is not working, and that is something the evidence really shows.”
Alexa Kolbi-Molinas, deputy director of the ACLU’s Reproductive Freedom Project, interprets the new HHS letter to mean the law does require emergency abortion care, but she added that the administration’s actions on the matter “have been reckless at best and outright dangerous at worst.”
“The Trump administration is scrambling to clean up a mess entirely of its own making,” Kolbi-Molinas said in an email. “The law has been clear for forty years: pregnant patients who go to a hospital in medical crisis must receive health- and lifesaving care, regardless of state law. If the administration had not rescinded the previous guidance reaffirming hospitals’ obligations to provide this care earlier this month, there would have been no need to issue Friday’s letter.”
HHS did not respond to direct questions about what “stabilizing care” meant and whether its interpretation of EMTALA included abortion as stabilizing care. Instead, a spokesperson for the agency sent a link to a June 4 message on X from Dr. Mehmet Oz, administrator of the Centers for Medicare & Medicaid Services.
“Don’t believe the spin and fearmongering of the fake news,” the post said. “The Biden Administration created confusion, but EMTALA is clear and the law has not changed: women will receive care for miscarriage, ectopic pregnancy, and medical emergencies in all fifty states- this has not and will never change in the Trump Administration.”
A burden on doctors and patients
“To me, this question remains: Why won’t they use the word ‘abortion’ if they really believe that abortion is sometimes part of emergency medical care for pregnant people? They won’t do it,” said Rebecca Hart Holder, president of Reproductive Equity Now.
“If the Trump administration or Secretary Kennedy truly intended to reassure providers that abortion in the case of a medical emergency, is protected under EMTALA, they would have used those words explicitly as a qualifying example of emergency medical care,” Hart Holder added. “I think it’s a fair assumption to make that even more people are going to die when they’re in emergency situations.”
In the wake of Dobbs, the Kennedy letter presents another potential problem, said reproductive law expert Rolonda Donelson.
“In the letter, he mentions that EMTALA requires caring for the pregnant woman and their unborn child. Pre-Dobbs, that might not have meant much, but post-Dobbs, with the rise in fetal personhood in state abortion bans, it raises questions on whether the providers in these emergency departments have any duty to the unborn fetus and whether they can provide this emergency stabilizing care when it conflicts with their state abortion ban,” said Donelson, the Huber Reproductive Health Equity Legal Fellow at the National Partnership for Women & Families.
“This guidance does not provide any clarification. It increases chaos and confusion among patients, providers and everyone on whether they can go into an emergency department if they’re experiencing a medical emergency and receive an abortion as necessary stabilizing care.”
In March, concerned that even more clarity was needed, 88 lawmakers reintroduced a resolution that affirmed EMTALA protects access to emergency abortion care. But even if such a bill were to make its way through Congress, it’s unclear whether Trump would sign it.
In the absence of additional legislation, legal experts say, the confusion will continue placing an unfair burden on doctors and patients.
“It’s unrealistic to have doctors who should be saving patient lives and doing all of those important things to try and also be lawyers and policy advocates and figure out the nitty gritty of what these things mean,” Donelson said.
But it’s important for patients to know, she said, that they should go to an emergency room if they are experiencing a medical emergency.
“The last thing I would want is a pregant person who is experiencing a medical emergency to think that they won’t be able to get care at a hospital and forgo going and then something bad happen to them.”