HHS says doctors should perform emergency abortions

Physicians must perform emergency abortions under federal law and face fines if they refuse to offer the procedure in these cases, Health and Human Services Secretary Xavier Becerra wrote Monday in a letter to healthcare providers.

Becerra said federal law is ahead of state bans on abortion in cases where women face pregnancy-related emergencies under the Emergency Medical Care and Active Childbirth Act. The health minister wrote that if an abortion is needed to treat a woman in need of a medical emergency, doctors should suggest the procedure.

Hospitals that refuse to perform abortions in these cases could be terminated from Medicare providers or subject to financial penalties, Becerra said. He added that individual doctors could also be excluded from Medicare and state health programs if they refuse to offer emergency abortions. Physicians can also use federal law as a defense if they face state litigation when performing emergency abortions, according to HHS.

Becerra said such emergencies include, but are not limited to, ectopic pregnancy, complications of miscarriage, and hypertensive disorders such as preeclampsia, which usually occurs after 20 weeks of pregnancy. Preeclampsia leads to high blood pressure, severe headaches, and blurry vision. The condition can lead to fatal complications if left untreated.

“According to the law, no matter where you live, women have the right to emergency care, including abortion,” Becerra said. “We confirm that we expect providers to continue to offer these services and that federal law lifts the state’s ban on abortion when needed for emergency care.”

President Joe Biden signed an executive order Friday directing HHS to protect access to abortion. At least nine states have banned abortion since the Supreme Court overturned Roe v. Wade last month, who has defended access to procedure as a constitutional right for nearly 50 years. Several other states tried to ban abortion, but their laws were blocked by state courts.

While state bans on abortion usually make exceptions when a woman’s life is in danger, reproductive rights activists fear the laws will have a deterrent effect on patients seeking medical care, as well as doctors who fear prosecution. US health officials are concerned that cautious doctors may wait too long to treat ectopic pregnancies and complications from miscarriages while waiting for legal guidance.

All state bans on abortion make abortion a felony that carries a prison sentence, the length of which varies by state. Women who have abortions are generally exempt from prosecution under state bans, but the reproductive rights group is concerned that states will also take action to criminalize abortion.

Biden also instructed HHS to take action to make the abortion pill mifepristone as accessible as possible and protect access to contraceptives.

The Food and Drug Administration approved abortion pills over 20 years ago as a safe and effective way to terminate a pregnancy before the 10th week. In December, the FDA permanently authorized mail-order pills from licensed pharmacies and healthcare providers. But states that ban abortion also ban medical professionals from giving the pill.

The Center for Reproductive Rights and Democratic lawmakers have called on the Biden administration to declare a public health emergency in response to states’ bans on abortion.

The president told reporters over the weekend that he asked health officials in the administration to find out whether he has the legal authority to declare such a state of emergency to protect access to abortion and what impact the use of that authority would have. But Jen Klein, director of the White House Gender Policy Council, said the administration has come to the conclusion that declaring a state of emergency is not the best position to take in response to states’ bans on abortion.

“When we looked at the public health emergency, we learned a couple of things. First, it doesn’t free up a lot of resources. Klein told reporters on Friday. “So it didn’t seem like a great option. And it doesn’t absolve you of significant legal powers either. That’s why we didn’t take this action.”