Doctors must be given abortions in medical emergencies under federal law and face penalties if they refuse to offer the procedure in these cases, Health and Human Services Secretary Xavier Becerra wrote in a letter to health care providers on Monday.
Becerra said the federal law provides for a statewide ban on abortion under the Emergency Medicine Treatment and Active Labor Act, which deals with women’s medical emergencies related to pregnancy. If an abortion is necessary to treat a woman to deal with a medical emergency, doctors should offer the procedure, the health secretary wrote.
Hospitals that refuse to perform abortions in these cases could terminate a Medicare provider agreement or face financial penalties, Becerra said. Individual doctors could also be removed from Medicare and state health programs if they refuse to offer abortions in medical emergencies, he added. Doctors can also use federal law as a defense if they face state prosecution when they provide abortions in emergencies, according to HHS.
Becerra said medical emergencies include ectopic pregnancies, abortion complications, and hypertensive disorders such as preeclampsia, which usually occurs after 20 weeks of pregnancy. Preeclampsia causes hypertension, severe headaches, and blurred vision. This condition can lead to serious complications if left untreated.
“By law, wherever you live, women have the right to emergency care, including abortion care,” Becerra said. “We expect providers to continue to provide these services and that federal law provides for a statewide abortion ban when emergency care is needed.”
President Joe Biden signed an executive order on Friday directing HHS to protect access to abortion. At least nine states have banned abortion by the Supreme Court last month in Roe v. Since Wade’s repeal, he has protected access to the proceedings as a constitutional right for nearly 50 years. Several other states have tried to ban abortion but their laws have been blocked by state courts.
Although state abortion bans generally make exceptions when a woman’s life is in danger, reproductive rights activists fear the law will have a devastating impact on patients with poor care and doctors who fear trial. U.S. health officials are concerned that responsible physicians may wait too long to treat ectopic pregnancies and abortion complications while awaiting legal guidance.
All prohibitions on abortion in the state make abortion a crime that carries time in prison, and its duration varies by state. Women who receive abortions are generally exempt from trial under state bans, but the reproductive rights group is concerned that states will also play a role in criminalizing abortion.
Biden also ordered HHS to take steps to make the abortion pill, mifepristone, as accessible as possible and to protect access to contraception.
The Food and Drug Administration approved abortion pill more than 20 years ago as a safe and effective way to end a pregnancy before week 10. In December, the FDA finally allowed the pill to be mailed from licensed pharmacies and healthcare providers. But states that ban abortion also ban the provision of pills to health care providers.
The Center for Reproductive Rights and the Democratic legislature have called on the Biden administration to declare a public health emergency in response to states banning abortion.
The president told reporters over the weekend that he had asked administrative health officials to examine whether he had any legal authority to declare such an emergency to protect access to abortion and what effect the use of powers would have. But Jen Klein, director of the White House Gender Policy Council, said the administration concluded that declaring an emergency was not the most appropriate position to respond to states that ban abortion.
“When we looked at the public health emergency, we learned a couple of things. One is that it doesn’t release a lot of resources. It’s basically for public health emergencies, and there’s very little money – tens of thousands of dollars in it,” Klein told reporters Friday. “So it didn’t seem like a great option to me. And it also doesn’t release a huge amount of legal authority. That’s why we didn’t take that action.”
HHS says doctors should give abortions in emergencies
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