HHS Secretary Xavier Becerra sent a letter Friday to state governors, warning that the agency would “not hesitate” to tap the Department of Justice for legal action if a state prohibited providers from offering emergency abortion care under federal law.
“Under the Constitution, states cannot avoid their responsibilities under federal law, or interfere with a medical professional’s obligations under federal law to provide this essential medical care,” Becerra stated in the letter, referring to the Emergency Medical Treatment and Labor Act, known as EMTALA.
The letter, which also implored states to reach out to the HHS to expand state abortion access, is the latest move in a fight between the Biden administration and states that have passed laws restricting abortion access following the fall of Roe v. Wade.
The letter urged state governors to tap federal funding, including Medicaid funds, to expand abortion access for more than 80 million Medicaid enrollees, including for pregnant people traveling from states that restrict or prohibit abortion. It encourages states to engage with the CMS and to work with the HHS to expand abortion access.
Legal cases across the country are currently addressing the patchwork of state laws surrounding abortion.
Earlier this week, a U.S. District Court judge in Texas blocked guidance issued in July from the HHS that stated doctors must provide emergency abortion services, regardless of state law, under EMTALA.
However, in Idaho, another U.S. District Court judge on Wednesday blocked a portion of the state’s abortion trigger ban, saying that physicians could not be prosecuted for performing an emergency abortion due to EMTALA after the DOJ sued the state earlier this month.
Beccera further emphasized that federal law requiring hospitals to offer emergency stabilizing treatment would preempt state law if abortion bans did not include exceptions for the life and health of a pregnant person, or were more narrow than EMTALA’s provision, adding that the agency had “many reports” of people who faced delays or were denied medically necessary care due to state abortion restrictions.
Several states currently have abortion bans that aim to prosecute doctors for providing abortions. In Tennessee, state law criminalizes doctors who perform abortions, even if it’s to save the life of a pregnant person. In addition, the law requires an “affirmative defense” for providers, meaning that doctors are not shielded from being charged criminally when providing any abortion, but have the burden of building a criminal defense after charges have been filed.
In Texas, providers who perform an abortion after fertilization face a felony punishable by up to life in prison in addition to a civil penalty of at least $100,000, plus attorney’s fees, although attorneys have raised flags that the ban seems to violate double jeopardy.