The Biden administration said Monday that federal law allows women access to abortion in emergencies, even in states that banned the procedure after last month's Supreme Court decision overturning Roe v. Wade.
The Department of Health and Human Services said that in cases of health emergencies, the Emergency Medical Treatment and Active Labor Act — a 1985 law that ensures access to emergency care regardless of a person’s ability to pay — takes priority over state laws banning abortion.
“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Health and Human Services Secretary Xavier Becerra said in a statement Monday. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care.”
HHS said it is up to physicians to determine what qualifies as an emergency, but it cited examples such as miscarriages, ectopic pregnancies or dangerously high blood pressure.
In a letter to health care providers, Becerra said hospitals that do not comply could face fines or other penalties involving Medicare agreements and programs.
The move could set up legal clashes where abortion was banned after the June 24 ruling by the Supreme Court. Although most of the states that have banned abortion allow exceptions for the life of the mother, those carve outs are often vague and have left some physicians unclear about what they are legally allowed to do. The guidance from HHS is aimed in part at providing more clarity to health care providers.
President Joe Biden faces sustained pressure from Democrats to take a more aggressive response to the Supreme Court's ruling on abortion. Since the decision was handed down, nearly a dozen Republican-controlled states have banned abortion, and other states are expected to issue similar restrictions in the coming weeks.
Biden has taken executive action to protect access to abortion, but he has also emphasized that the most effective way to undo the Supreme Court decision is to pass a law in Congress legalizing abortion access. Doing so would require a change to the Senate filibuster rule, a move that does not have enough Democratic support.