How recent HHS guidance interacts with state abortion law
FMA Staff Report | Updated July 21, 2022

Last week, U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra sent out a letter notifying frontline healthcare providers of the Department’s guidance regarding the Emergency Medical Treatment and Active Labor Act (EMTALA), in regards to emergency medical conditions involving pregnant patients. According to HHS, “if a physician believes 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.” HHS further stated that any state law that prohibits an abortion in such a circumstance is preempted.

The impact of this guidance in Florida appears to be limited. While recently enacted legislation (HB 5) prohibits the performance of an abortion if the gestational age of the fetus is more than 15 weeks, the legislation retains the following exceptions:
  • Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.

  • The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman’s life or avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation.

These exceptions for the life and health of the mother appear to place Florida law in line with the HHS interpretation of EMTALA requirements. A possible point of conflict is the language excluding psychological conditions from the exceptions. If a woman is experiencing an emergency medical condition of a psychological nature related to her pregnancy and the only available stabilizing treatment is an abortion, according to the HHS guidance the treating physician must perform the abortion despite Florida’s prohibition.

It should be noted that the Texas Attorney General has filed a lawsuit against HHS and certain high-level HHS officials challenging the HHS guidance and Secretary Becerra’s companion letter. The complaint asks the United States District Court for the Northern District of Texas to declare unlawful and set aside the HHS guidance on the grounds that EMTALA does not provide a basis for the federal government to compel healthcare providers to perform abortions.

Florida’s 15-week abortion ban has also been challenged in the courts, with two suits currently pending. In Planned Parenthood of Southwest and Central Florida v. State of Florida, Leon County Circuit Court Judge John Cooper ruled that the law was unconstitutional and issued a statewide injunction that was automatically nullified when the state appealed the ruling. Ultimately, the constitutionality of HB 5 will most likely be resolved by the Florida Supreme Court.