EMTALA preemption prohibition of abortion and avoiding the double-edge sword

7 minute read

In the wake of the recent U.S. Supreme Court decision to overturn Roe v. Wade, which held the Constitution does not protect abortion, hospitals are faced with critical state law questions regarding their respective state statutes that may conflict with the Emergency Medical Treatment and Labor Act (EMTALA).[1]

The Centers for Medicare & Medicaid Services (CMS) released a memorandum on July 11, 2022, clarifying that the EMTALA law provides healthcare professionals giving clinically necessary pregnancy termination services in emergency situations—regardless of state prohibitions—protection from legal consequences of respective state law.[2]

Despite CMS’ affirmation of legal protection from state law, many clinical professionals face the fear of criminal prosecutions and political pressures within their communities. Physicians may ask themselves how to avoid negative legal and community consequences rather than focus on their own medical judgment in serving the patient’s best interests. This conundrum could force a “freezing” effect, circumventing the confidence of clinical decision-making.

It is no surprise that physicians, as well as hospital administrators, have begun knocking on compliance professionals’ doors to receive guidance and perspective as uncertainty sweeps hospitals throughout the country. To provide that guidance, compliance professionals have collaborated with legal professionals to develop a strategic plan for facing this uncertainty.

Before your organization’s plan can be executed, it is important for compliance professionals to understand how current cases are evolving and get a perspective of where government agencies are focusing their theory of enforcement. The following is a recent case study that compliance professionals can use to help drive conversation and strategic planning.

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