I. Key Takeaways
- Federal enforcement under the Emergency Medical Treatment and Labor Act (EMTALA) may be changing after the Centers for Medicare & Medicaid Services (CMS) rescinded guidance issued under the Biden administration following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. The withdrawn guidance had reminded hospitals of their duty to comply with EMTALA and interpreted the law as protecting providers' clinical judgment and actions to provide stabilizing medical treatment, including abortion care, regardless of any applicable state law abortion restrictions. It also emphasized that when an emergency medical condition requires abortion care as stabilizing treatment, physicians are required to provide it.
- Through a press release published on June 3, 2025, CMS announced that it will continue to enforce EMTALA, including "for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy." HHS Secretary Robert F. Kennedy reiterated this in a letter on June 13, 2025, emphasizing HHS' commitment to enforcing EMTALA and maintaining that EMTALA preempts state laws that directly conflict with its requirements. The letter specifies that "providers should not misconstrue existing State laws . . . as a basis for denying stabilizing care to any pregnant woman facing an emergency medical condition."
- However, neither the CMS press release nor Secretary Kennedy's letter restate the prior administration's strong position that EMTALA requires abortion care when necessary to stabilize an emergency condition. Kennedy's letter mentions only "obstetric emergencies, including ectopic pregnancies, miscarriages, premature ruptures of membranes, trophoblastic tumors, and other similar conditions." This language suggests that the Trump administration may interpret EMTALA more narrowly, raising questions about how HHS will address conflicts between state abortion laws and EMTALA and how providers should proceed in ambiguous situations.
- Although these recent actions under the Trump administration purport to clear up perceived legal confusion and uncertainty, the post-Dobbs legal landscape continues to be fraught with risk for most providers with emergency departments in states with abortion restrictions.
II. Background
The Emergency Medical Treatment and Labor Act (EMTALA), codified in
section 1867 of the Social Security Act (42 U.S.C. § 1395dd),
was enacted in 1986 to ensure that no individual who presents at an
emergency department in need of emergency care is denied treatment.
EMTALA creates a federal duty for all Medicare-participating
hospitals with emergency departments to appropriately screen any
individual who presents at an emergency department for the presence
of an emergency condition and, if one is identified, the hospital
must provide stabilizing treatment within its capabilities or
transfer the individual to a facility with the necessary
capabilities.
As we have discussed in previous publications here, here, and here, the Supreme Court decision in Dobbs
v. Jackson Women's Health Organization, 597 U.S. 215
(2022), which overruled Roe v. Wade, 410 U.S. 113 (1973)
and eliminated federal constitutional abortion protections,
resulted in abortion regulations generally being left up to the
states. After Dobbs, many states passed new abortion
restrictions. All states' restrictions effectively allowed for
abortions to be lawfully performed to save the life of the mother,
but the scope and clarity of these exceptions varied. By contrast,
not all state laws had exceptions to allow for abortion care to
preserve the health of the pregnant patient. The bans with limited
exceptions gave rise to novel legal questions about whether
providers were prohibited from providing abortion care when such
care was determined by a physician to be necessary to stabilize a
pregnant patient experiencing an emergency medical condition that
implicated EMTALA.
In response, the Centers for Medicare & Medicaid Services (CMS)
issued guidance titled "Reinforcement of EMTALA Obligations
specific to Patients who are Pregnant or are Experiencing Pregnancy
Loss" (QSO-21-22-Hospitals and QSO-22-22- Hospitals). This guidance
reinforced CMS' view that EMTALA requires hospitals to provide
stabilizing treatment—including abortion, if
necessary—to pregnant patients presenting with an emergency
medical condition, regardless of any applicable state law
restricting abortion. In an accompanying letter from the Secretary of Health and Human
Services (HHS) to health care providers dated July 11, 2022, HHS
emphasized that EMTALA's mandate preempts any directly
conflicting state law or mandate that could otherwise prohibit such
treatment, including when a state law prohibits abortion without an
exception for the life and health of the pregnant person or draws
the exception more narrowly than EMTALA's emergency medical
condition definition. This guidance clarified the legal duty of the
examining physician or qualifying medical personnel to determine
the presence of an emergency medical condition and provide the
necessary stabilizing treatment. Further, the 2022 letter
explicitly pronounced that if a physician believed "that a
pregnant patient presenting at an emergency department, including
certain labor and delivery departments, 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." (Emphasis
added.)
On May 29, 2025, CMS formally rescinded its guidance titled
"Reinforcement of EMTALA Obligations specific to Patients who
are Pregnant or are Experiencing Pregnancy Loss" (QSO-22-22-Hospitals and QSO-21-22-Hospitals) and the accompanying letter from the HHS Secretary, noting that the
2022 issuances do not reflect the policy of the Trump
administration. Through a press release published on June 3, 2025,
CMS indicated that it will continue to enforce EMTALA, including
"for identified emergency medical conditions that place the
health of a pregnant woman or her unborn child in serious
jeopardy." The press release further specifies that CMS will
work to rectify "perceived legal confusion and
instability" created by the Biden administration guidance,
suggesting that additional guidance would be forthcoming.
Additional guidance arrived from HHS Secretary Kennedy in a letter
to health care providers on June 13, 2025. The letter commits HHS
to EMTALA enforcement and expressly maintains HHS' position
that EMTALA preempts state laws in direct conflict with
EMTALA's requirements. This letter clarifies that EMTALA
"continues to ensure pregnant women facing medical emergencies
have access to stabilizing care" and promises that the law has
not changed: "women will receive care for miscarriage, ectopic
pregnancy, and medical emergencies in all fifty states."
Further, the letter specifies that "providers should not
misconstrue existing State laws . . . as a basis for denying
stabilizing care to any pregnant woman facing an emergency medical
condition." The letter concludes with a commitment from HHS to
expeditiously review EMTALA complaints and timely action in
response to violations. Notably, Secretary Kennedy does not use the
word "abortion" in his letter.
Compared to the Biden-era guidance, however, Secretary
Kennedy's letter does not contain an explicit statement about
an obligation to provide abortion care. Although the June 13, 2025
letter indicates HHS' continued commitment to enforcing EMTALA
— including in cases where care is necessary to stabilize
pregnancy related medical emergencies — the recission of
CMS' 2022 guidance, coupled with the absence of language about
when abortion care is required to be provided suggests the Trump
administration may interpret and enforce EMTALA more narrowly than
the Biden administration. For example, it is not clear how HHS will
view providers' clinical judgment to provide abortion care when
there is an apparent state law conflict. Also unclear is how
providers should navigate close calls about whether a state's
abortion restriction directly conflicts with EMTALA's
requirements – for example, when the pregnant woman's
health, but not life, would be in jeopardy in the absence of
performing an abortion. In contrast to the strong language in the
Biden-era guidance about abortion care being mandated in these
circumstances, the position of the Trump administration on these
close calls is not yet known.
The administration's less aggressive position on EMTALA is also
apparent after the Department of Justice dismissed its challenge to
Idaho's ban on emergency abortion care in Idaho and Moyle,
et al. v. United States, Case No. 1:22-cv-00329-BLW (discussed
here, here, and here). In that litigation, the Biden
administration previously argued that the Idaho state law was
preempted by EMTALA as interpreted in the CMS guidance. In 2024,
the U.S. Supreme Court held in a 6-3 decision that review of the
case had been "improvidently granted," reinstating the
lower court's pause on the Idaho law while the litigation
continued in the lower courts.
The day before the government's dismissal of its case, St.
Luke's hospital, the largest hospital system in Idaho, sought a
temporary restraining order to protect its ability to provide
pregnant patients necessary emergency care. See St. Luke's
Health System, Ltd. v. Labrador, No. 1:25-cv-00015-BLW (2025).
St. Luke's had filed a lawsuit against the Attorney General of
Idaho in January 2025, seeking injunctive relief prohibiting
enforcement of the state law as applied to EMTALA-mandated care.
Knowing that the government intended to dismiss its complaint, St.
Luke's sought the TRO to avoid a gap in protections while the
district court considered the merits of its motion for a
preliminary injunction. On March 20, 2025, the district court
granted a narrow injunction as applied to St. Luke's only,
prohibiting the state from enforcing Idaho's state law against
St. Luke's or its medical providers when they perform abortions
under the requirements of EMTALA. The court declined to broaden the
injunction to cover all Idaho hospitals, and the injunction
currently remains in place only for St. Luke's.
III. Potential Impact on Providers with Emergency
Departments (At a Glance)
Healthcare providers are confronted with a complex and evolving
risk environment after the recission of CMS's 2022 EMTALA
guidance. Key areas we are tracking include:
- Conflicting Legal Duties: Hospitals must navigate between federal EMTALA obligations and increasingly restrictive state abortion laws, some of which lack exceptions for the health of the pregnant patient or define emergency medical conditions more narrowly than EMTALA.
- Enforcement Uncertainty: The rescission of CMS' prior guidance signals a possible reduced willingness of the federal government to intervene in state enforcement action brought against a provider who performs an abortion, or to bring its own EMTALA enforcement actions against providers who refuse to do so when necessary to stabilize an emergency medical condition.
- Potential for Litigation: Hospitals and providers may become parties to litigation—either as defendants in state enforcement actions or as plaintiffs seeking federal court protection for providing EMTALA-mandated care. Notably, section 1867(d)(2) of the Social Security Act provides a private right of action for any individual who suffers harm because of a hospital's violation of EMTALA or for any financial loss to another medical facility caused by a hospital's EMTALA violation, meaning that even without HHS enforcement, providers could still become defendants in EMTALA suits brought by non-governmental parties.
- Operational Challenges: Staff may be uncertain about their legal obligations, leading to delays in care, increased administrative burden, and potential adverse patient outcomes.
IV. Conclusion
The rescission of CMS' 2022 EMTALA guidance, regarding provider
obligations under EMTALA specific to pregnant patients and those
who are experiencing pregnancy loss, and Secretary Kennedy's
letter underscore the growing complexity and risk for hospitals
operating in states with restrictive abortion laws. While
EMTALA's statutory requirements remain in effect, the reach of
the federal government's EMTALA enforcement going forward is
unclear and requires providers to reassess the risks of caring for
pregnant patients experiencing an emergency medical
condition.
Our Healthcare Department is closely monitoring the evolving legal
landscape and can help providers in a variety of ways, including
by:
- Reviewing and updating hospital policies to ensure that emergency department and labor and delivery protocols reflect both EMTALA requirements and applicable state law;
- Developing training for emergency and obstetric staff on EMTALA obligations, state law restrictions, and the current legal environment and risk mitigation strategies (e.g., documentation best practices);
- Consulting with legal counsel regarding the interplay between EMTALA and state law in particular jurisdictions;
- Preparing for complaints and investigations with internal reporting mechanisms and designated response teams; and
- Providing litigation analyses for contemplated plaintiff-side litigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
