The Trump Administration has added to the confusion surrounding the U.S.’s shifting patchwork of abortion laws by rescinding Biden-era guidance that directed hospitals to provide abortions in emergency situations, even in states where abortion is restricted.
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The decision, announced on Tuesday, does not change the federal law that was at the heart of the Biden Administration’s guidance: the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals that receive Medicare funding—which is most of them—to provide stabilizing treatment to patients experiencing medical emergencies or transfer them to a hospital that can.
The Trump Administration’s Centers for Medicare and Medicaid Services (CMS) said in a press release that it “will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.” But the agency also said that it “will work to rectify any perceived legal confusion and instability created by the former administration’s actions.”
Doctors and abortion-rights advocates, however, said they feared that the Administration’s move will amplify confusion over whether doctors can provide critical care, thereby putting lives at risk.
Dr. Jamila Perritt—an ob-gyn in Washington, D.C., and the president and CEO of Physicians for Reproductive Health—said in a press release that rescinding the Biden-era guidance would force “providers like me to choose between caring for someone in their time of need and turning my back on them to comply with cruel and dangerous laws.”
“This action sends a clear message: the lives and health of pregnant people are not worth protecting,” Perritt said.
What was the Biden-era guidance?
The Biden Administration issued the guidance after the U.S. Supreme Court overturned Roe v. Wade in 2022, reminding hospitals of their “obligations” under EMTALA, as state laws restricting or banning abortion began going into effect.
“Any state actions against a physician who provides an abortion in order to stabilize an emergency medical condition in a pregnant individual presenting to the hospital would be preempted by the federal EMTALA statute due to the direct conflict with the ‘stabilized’ provision of the statute,” the guidance stressed. “Moreover, EMTALA contains a whistleblower provision that prevents retaliation by the hospital against any hospital employee or physician who refuses to transfer a patient with an emergency medical condition that has not been stabilized by the initial hospital, such as a patient with an emergent ectopic pregnancy, or a patient with an incomplete medical abortion.”
The guidance also said that physicians’ fear of violating state laws prohibiting abortion could not be used as the basis for transferring a patient.
“When a direct conflict occurs between EMTALA and a state law, EMTALA must be followed,” the guidance stated.
How will rescinding the guidance impact care?
EMTALA remains in place despite the change in the guidance.
The Trump Administration did not explicitly advise hospitals that they could deny patients abortions in emergency situations. CMS did specify in the memo announcing the revocation that the Department of Health and Human Services may not enforce the interpretation in the Biden Administration’s guidance that EMTALA preempts Texas’ near-total abortion ban, pointing to court rulings that have temporarily blocked the guidance in the state.
But abortion-rights advocates sharply criticized the Trump Administration’s move, saying it endangers the lives of pregnant people.
“The Trump Administration would rather women die in emergency rooms than receive life-saving abortions,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a press release. “In pulling back guidance, this administration is feeding the fear and confusion that already exists at hospitals in every state where abortion is banned. Hospitals need more guidance right now, not less.”
“We’re making our health care professionals have to operate in a gray area when their work really needs to be clear,” says Monica Simpson, executive director of SisterSong, a reproductive justice collective. “They’re in the business of providing life-saving care to people on a daily basis, and they don’t need to be put in a position where their decision making is compromised.”
When that confusion happens, she says, “people die.” Simpson says that, for states that have banned or restricted abortion, like her home state of Georgia, rescinding the Biden-era guidance is “just going to make things worse.”
“It’s making it incredibly scary for the American people and pregnant folks who would need access to emergency services,” Simpson says. “People’s lives are at stake.”
Anti-abortion groups, meanwhile, celebrated the move.
“The Trump administration has delivered another win for life and truth – stopping Biden’s attack on emergency care for both pregnant moms and their unborn children,” Susan B. Anthony Pro-Life America President Marjorie Dannenfelser said in a press release. She accused Democrats of creating confusion about people’s access to care in medical emergencies, including miscarriages and ectopic pregnancies. “In situations where every minute counts, their lies lead to delayed care and put women in needless, unacceptable danger,” she said.
Previously, the Biden Administration had sued Idaho over its near-total abortion ban, saying that the state’s restrictions conflicted with EMTALA. In March, the Trump Administration dropped the lawsuit.
More than a dozen states have banned abortion in almost all cases or after six weeks of pregnancy, before many people even know they’re pregnant. There have been many reports of pregnant people experiencing complications being turned away from hospitals in states that have banned abortion.
Federal officials recently completed investigations into complaints two such women filed during the Biden Administration, alleging that the hospitals that denied them care violated EMTALA. Investigators found that the Texas hospital that denied Kyleigh Thurman care while she was bleeding and experiencing an ectopic pregnancy—a condition that can be life-threatening—a few months after the state enacted its abortion ban violated EMTALA, The Associated Press reported on Wednesday. In the second case, meanwhile, TIME learned Wednesday that investigators determined that the Arizona hospital that denied Wendy Simmons care while she was experiencing a complication called preterm pre-labor rupture of membranes (PPROM) while the state had a 15-week abortion ban in place did not violate EMTALA.
Molly Duane, senior staff attorney at the Center for Reproductive Rights who represented both Thurman and Simmons, says that while EMTALA is “a powerful tool” to preserve emergency abortion access, “it really is not enough to protect every patient around the country,” particularly in states with abortion bans and restrictions. Duane adds that the Trump Administration’s move to rescind the Biden-era guidance on EMTALA, in addition to the “conflicting results” in Thurman’s and Simmons’ cases, will only continue “to sow confusion among doctors and hospitals.”
“This is a really troubling sign that the Trump Administration rescinded that guidance, but, at least for the moment, EMTALA is still the law of the land, and we at the Center for Reproductive Rights fully expect for hospitals and doctors around the country to do as much as they can to protect patients, and we expect and hope that the governments of their states will do the same,” Duane says.