/>iThe Centers for Medicare & Medicaid Services (CMS) recently rescinded its July 2022 guidance titled “Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss” (“2022 Guidance”)[1] as well as the letter from the former Secretary of the U.S. Department of Health and Human Services (HHS) that accompanied the 2022 Guidance (the “Letter”).[2]
CMS noted that the 2022 Guidance and the Letter did not “reflect the policy of this Administration.”
The rescinded 2022 Guidance asserted that the federal Emergency Medical Treatment and Labor Act (EMTALA) preempts state law that conflicts with obligations created under EMTALA. More specifically, in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization to overturn Roe v. Wade, a physician would be protected by EMTALA if a pregnant patient presented to the emergency department (ED) with an emergency medical condition (EMC) that required an abortion to stabilize the patient. In other words, the 2022 Guidance confirmed that EMTALA would preempt any state law that prohibits abortion in the case of an emergency.
CMS’s recent rescission announcement failed to provide additional clarity for hospitals or health care providers on this difficult topic, instead noting only that CMS will “work to rectify any perceived legal confusion and instability created by the former administrator’s actions.” Since the rescission took effect on May 29, 2025, many hospitals and health care providers have been wading through murky legal waters in an attempt to decipher what the rescission means and its impact on the assumed protection of providers that the former administration clarified through the 2022 Guidance.
Background on EMTALA Requirements
In a July 2022 Insight on the 2022 Guidance, we summarized EMTALA requirements, focusing on two main pillars of the law: screening and stabilization.
Screening
For the screening requirement, a hospital must provide an appropriate medical screening examination (MSE) for any individual arriving at an ED requesting examination or treatment of a medical condition.[3] The ED must act within its capability and capacity to provide an MSE by a physician or qualified medical personnel (QMP) to determine whether an EMC exists, regardless of the individual’s insurance status. An EMC is defined by a condition that is, or is certain to become, an emergency without stabilizing treatment, including active labor for pregnant patients, but not pregnancy by itself. The definition includes a condition that manifests in severe pain or serious impairment to bodily functions or organs.[4] Ultimately, the determination of an EMC is left to the clinical judgment of the examining physician or QMP.
Stabilization
The obligation to stabilize is triggered upon a determination that an EMC exists, requiring the hospital to provide such medical treatment as is necessary to ensure, within reasonable medical probability, that no material deterioration of the EMC or the individual occurs.[5] The now-rescinded 2022 Guidance provided certainty for hospitals by confirming that if a physician determines that abortion constitutes the appropriate stabilizing treatment for an EMC, then both the physician and the hospital are obligated to provide such treatment, within their capabilities and capacity, notwithstanding any conflicting state law that may prohibit the procedure.
Timeline of Legal and Administrative Action Post-Dobbs
In its Dobbs decision, the Supreme Court overturned Roe v. Wade precedent regarding abortion rights—ruling that abortion is not a fundamental right protected by the U.S. Constitution and should be left to the states to regulate.[6] This meant that states could, and did, proceed to pass legislation that included abortion bans with limited exceptions.
Federal preemption is a legal doctrine rooted in the Supremacy Clause of the U.S. Constitution, which provides that federal law supersedes or displaces conflicting state or local laws. The federal EMTALA statute itself states that “[t]he provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section” [emphasis added].[7] Unfortunately, some of the post-Dobbs state laws on reproductive care prohibiting abortion seemed in conflict with the EMTALA obligation to provide stabilization in the event of an EMC.
In an effort to clear up confusion regarding hospitals’ ability to provide a stabilizing abortion in the case of an EMC in states with near-total bans, the Biden administration released the 2022 Guidance, noting EMTALA preempted state law when abortion was necessary to stabilize a patient with an EMC. Following the release of the 2022 Guidance, the issue of abortion in emergency situations was litigated, notably in Texas and Idaho.
Texas
In Texas v. Becerra, Texas sued HHS, arguing that CMS exceeded its statutory authority and successfully sought an injunction preventing the 2022 Guidance from being enforced in Texas.[8] Texas had passed legislation prohibiting a person from knowingly performing, inducing, or attempting an abortion, with noted exceptions.[9] The U.S. Supreme Court eventually denied certiorari, letting stand the U.S. Court of Appeals for the Fifth Circuit’s ruling that EMTALA does not override the Texas abortion ban. This was further supported by CMS’s recent rescission, noting that pursuant to the preliminary injunction in Texas v. Becerra, HHS may not enforce the following interpretations contained in the 2022 Guidance (and the Letter):
(1) HHS may not enforce the Guidance and Letter’s interpretation that Texas abortion laws are preempted by EMTALA; and
(2) HHS may not enforce the Guidance and Letter’s interpretation of EMTALA—both as to when an abortion is required and EMTALA’s effect on state laws governing abortion—within the State of Texas or against the members of the American Association of ProLife Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA).[10]
Idaho
In the cases of Moyle v. United States / Idaho v. United States, the U.S. Department of Justice sued Idaho over its state abortion law conflicting with EMTALA.[11] A federal district court granted the injunction, meaning that Idaho could not enforce its abortion ban in a medical emergency where EMTALA applies. Idaho filed an appeal, which initially led the U.S. Supreme Court to stay the injunction. Ultimately, however, the Supreme Court lifted the stay, finding that it had been improvidently granted.[12] Following the recent election, the Trump administration decided to drop the case, which was then dismissed by the Ninth Circuit, lifting the injunction.[13] However, another case brought by St. Luke’s Health System on the abortion ban was recently successful in reinstating the temporary restraining order on the enforcement of Idaho’s abortion ban, for now.[14]
Future Outlook: What Does the Rescission of the 2022 Guidance Mean for Providers?
In the aftermath of CMS’s recission of the 2022 Guidance, hospitals, health care providers, and the general public are left with the lingering confusion that existed after the Dobbs decision.[15] The real question here is, “What protections can a provider or hospital rely on if the stabilizing treatment for a pregnant woman experiencing an EMC is an abortion?”
In its brief statement on the recission, the current administration focused on the enforcement of EMTALA to protect patients, stating it “will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.” This is not inconsistent with the 2022 Guidance, which also promoted enforcement of EMTALA. However, instead of only protecting the patient, the 2022 Guidance emphasized protection of the provider caught between an obligation under EMTALA and a more restrictive, conflicting state law.
What Hospitals Should Do Now
Considering the current uncertainty between the interaction of EMTALA and state laws, hospitals would be wise to do the following:
- Educate providers and staff on general EMTALA requirements and state laws regarding reproductive care.
- Educate providers on comprehensive documentation of medical decision-making by health care providers related to stabilization efforts. Given the reliance on physician judgment to define EMTALA obligations, documentation of patient status and medical decision-making may be increasingly important for hospitals to defend patient status and stabilization efforts.
- Monitor administrative, regulatory, and legislative developments in regard to EMTALA and state law, and consult with counsel as needed.
Himani Gubbi and Ann W. Parks contributed to this article
ENDNOTES
[1] See CMS Statement on Emergency Medical Treatment and Labor Act, Centers for Medicare & Medicaid Services (Jun 3, 2025), https://www.cms.gov/newsroom/press-releases/cms-statement-emergency-medical-treatment-and-labor-act-emtala.
[2] See Memorandum from the Dep’t of Health & Hum. Serv.; Dir, Quality, Safety & Oversight Grp. and Surv. & Operations Grp. to the State Surv. Agency Dir. on Reinforcement of EMTALA Obligations Specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (Jul. 11, 2022), https://www.cms.gov/files/document/qso-22-22-hospitals-rescinded-05292024.pdf (“July 2022 Memorandum”).
[3] 42 U.S.C. § 1395dd(a).
[4] 42 U.S.C. § 1395dd(e)(1).
[5] 42 U.S.C. § 1395dd(b).
[6] Dobbs v. Jackson Women's Health Org., 142 S. Ct 2228 (2022).
[7] 42 U.S.C. § 1395dd(f).
[8] Texas v. Becerra, 89 F.4th 529 (5th Cir.), cert. denied, 145 S. Ct. 139 (2024).
[9] Tex. Health & Safety Code § 170A.002.
[10] See July 2022 Memorandum, supra note 2.
[11] United States v. Idaho, 623 F. Supp. 3d 1096 (D. Idaho 2022).
[12] Moyle v. United States, 144 S. Ct. 2015 (2024).
[13] United States v. Idaho, Nos. 23‑35440, 23‑35450, slip op. at 13 (9th Cir. Mar. 13, 2025).
[14] Order Granting TRO, St. Luke's Health System, Ltd. v. Labrador, No. 1:25-cv-00015 (D. Idaho Mar. 4, 2025).
[15] Dobbs v. Jackson Women's Health Org., 142 S. Ct 2228 (2022).
