EMTALA and Emergency Care for Pregnant Patients: Clarifications Evolve Gradually to Reconcile Conflicting Guidance Post-Dobbs

Strategies for hospitals and ED clinicians to reduce risks under EMTALA and state abortion laws

Since the U.S. Supreme Court's June 2022 decision in Dobbs v. Jackson Women's Health Organization (Dobbs), hospitals and their emergency department (ED) clinicians in some states have faced significant uncertainty about their ability to provide medically necessary emergency care to pregnant patients in compliance with both state law and the federal Emergency Medical Treatment and Active Labor Act (EMTALA), when the treatment required to stabilize a pregnant patient with an emergency medical condition (EMC) will terminate a pregnancy. This confusion has arisen from perceived conflicting legislative directives, regulatory guidance, and unofficial pronouncements from a wide variety of sources.

This alert provides background, an update on recent developments, and some specific strategies for hospitals and their emergency care teams to reduce risk while awaiting further clarification of their emergency care compliance obligations and options for pregnant patients.

EMTALA Developments Post-Dobbs

Dobbs held that the U.S. Constitution does not confer a right to abortion (overturning Roe v. Wade), and returned to the states their authority to regulate abortion.

The Mississippi statute at issue in Dobbs provided that "[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform…or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks." The Court held the statute survived rational basis review based on the Mississippi Legislature's findings in support of it, and the state's interest in protecting the unborn.

In response to Dobbs, some states, such as California and Missouri, moved to strengthen protections for abortion access. However, a number of states, such as Florida and South Carolina, enacted new abortion legislation; and in some other states, such as Arkansas and Oklahoma, previously enacted (but dormant) abortion laws became effective, which imposed stricter abortion limitations than would have survived constitutional challenge between Roe and Dobbs.

In July 2022, the federal Centers for Medicare & Medicaid Services (CMS) issued a memorandum emphasizing that, in CMS's view, state laws restricting or prohibiting abortion, except in narrow circumstances, do not impact the obligations of hospitals and their physicians and other caregivers under EMTALA to provide appropriate medical screening examinations to pregnant patients in the ED, and stabilizing care for pregnant patients determined to have EMCs, as follows:

1. a hospital must provide an appropriate medical screening examination to determine whether a patient seeking evaluation and/or treatment in the ED (or elsewhere on the hospital campus in some circumstances) has an EMC;
2. the hospital must provide stabilizing treatment within the hospital's capability and capacity if the patient is determined to have an EMC; and
3. the hospital must arrange for an appropriate transfer of a patient with an EMC that the hospital cannot stabilize (because the hospital lacks the capability or capacity to do so), to another facility that can provide the stabilizing treatment and has accepted the patient for transfer.

EMTALA defines an EMC as follows:

A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in:

1. placing the health of the individual (or, with respect to a pregnant patient, the health of the patient or her unborn child) in serious jeopardy, or
2. serious impairment to bodily functions, or
3. serious dysfunction of any bodily organ or part; or
4. with respect to a pregnant patient who is having contractions—
   1. there is inadequate time to effect a safe transfer to another hospital before delivery, or
   2. transfer may pose a threat to the health or safety of the patient or the unborn child.

A pregnant patient with an emergency condition and/or who is currently in labor must be treated until delivery of the child and the placenta is complete, until the patient and the fetus are stabilized, or until qualified medical personnel identify the labor as a "false labor" or Braxton Hicks contractions, unless a transfer in accordance with EMTALA is appropriate.

In January 2024, the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court's decision that CMS's EMTALA memorandum exceeded the agency's authority in Texas v. Becerra and enjoined CMS from enforcing the guidance's interpretation of EMTALA in Texas or against the plaintiff organizations (the American Association of Pro-Life Obstetricians & Gynecologists, and Christian Medical & Dental Associations). Specifically, the Fifth Circuit held the CMS guidance was a statement of policy that established or changed a substantive legal standard, and accordingly required notice and comment rulemaking.

A case that might have provided national clarity about when EMTALA preempts conflicting state abortion restrictions was Moyle v. United States (consolidated with Idaho v. United States). In Moyle, the U.S. Department of Justice sued the state of Idaho, alleging the state's abortion restrictions conflicted with EMTALA in medical emergencies except when "necessary to prevent the pregnant patient's death," and a federal district court enjoined enforcement of the law. Idaho appealed, and the U.S. Supreme Court stayed the injunction after accepting certiorari. Following oral argument, however, the Supreme Court declined to decide the case on the basis that certiorari had been "improvidently granted" because the parties' positions about the Idaho law at issue had changed sufficiently that the existence of a conflict between federal and state law was unclear. Specifically, Idaho counsel told the Supreme Court the state law at issue would allow pregnancy termination as treatment for all the emergency medical conditions the federal government had argued must permit abortion.

The Ninth Circuit remanded and dismissed the case in March 2025. Although the stay imposed in Moyle was lifted, in another case brought by an Idaho hospital system (St. Luke's Health System), the district court entered a temporary restraining order and more recently an injunction blocking enforcement of the law against the hospital system and its medical providers. The injunction covers the situations in which the Idaho abortion law conflicts with EMTALA, i.e., when a pregnant patient "presents to St. Luke's with an 'emergency medical condition,' where abortion is the necessary stabilizing care under EMTALA but not 'necessary to prevent death.'" According to the Idaho district court, "the Attorney General has asserted that Idaho law would allow an abortion in these types of situations anyway."

On June 3, 2025, CMS rescinded its July 2022 EMTALA memorandum, stating that the guidance created legal confusion and instability. CMS emphasized that EMTALA remains in effect, declaring that CMS "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," and adding that CMS will "work to rectify any perceived legal confusion and instability…."

As the legal landscape has evolved since Dobbs, providers' confusion about how EMTALA interacts with state abortion law can in some states be alleviated by a close examination of the current state of the law. For instance, in some states, not every medical intervention that results in termination of a pregnancy constitutes an abortion as defined in state law. For example, in Idaho, a procedure that terminates an ectopic pregnancy by definition is not an abortion under state law, so it should not implicate state abortion restrictions or penalties.

Similarly, state agencies in some states with stringent abortion restrictions are trying to counter what they view as misinterpretations of abortion laws they believe are clear. In Florida, for instance, the Agency for Health Care Administration has stated that Florida's "law is clear: abortion is permissible at any stage of pregnancy in Florida to save the life and health of the mother. Abortion is also available when the pregnancy results from rape, incest, or human trafficking, or has a fatal fetal abnormality."

Other states have sought to clarify their abortion laws, by passing additional legislation. The Texas Legislature recently amended its state abortion statute substantially to clarify explicitly that (among other things) for pregnancy termination to be permissible, an EMC need not pose an "imminent" threat to a pregnant patient—who need not have suffered "any effects" of the high-risk pregnancy at the time of the termination—and threats to major bodily functions are a sufficient basis for performing an abortion in addition to other life-threatening conditions. In a medical emergency, Texas physicians are no longer required to complete certain steps that otherwise would be required prior to performing an abortion. The law further notes that procedures performed to treat non-viable pregnancies, e.g., to terminate ectopic pregnancies and in connection with miscarriages, are not abortions. The author of the legislation told fellow lawmakers the amendments responded to press reports and testimony to legislative committees indicating providers feared severe sanctions for performing medically necessary abortions, and considered existing law to provide inadequate protections. As a result of providers' reluctance, care had been withheld or provided untimely in certain areas of the state, with serious adverse consequences for some patients. In addition, to ensure providers understand the law and its protections, the amended Texas statute also imposes specific abortion-law education requirements—which apply not only to physicians, but also to hospital lawyers.

In addition, EMTALA does not mention—much less mandate—any specific clinical treatment, including abortion, for any EMC, so providers may use their clinical judgment in accordance with state law to address patients' EMCs.

Nothing in Dobbs would appear to affect federal preemption of state laws that are contrary to EMTALA, so EMTALA still will have preemptive effect in cases involving pregnant patients with EMCs, as CMS recently has confirmed. CMS may promulgate more specific guidance to providers about how EMTALA applies to treating pregnant patients with EMCs, and some states already issued such guidance or are in the process of doing so.

On June 24, 2025, 22 state attorneys general sent a letter to the American Hospital Association asking it "to remind hospitals of their ongoing obligation to comply with EMTALA.... Put simply, all hospitals must continue to follow EMTALA, including with respect to the provision of emergency abortion care." The letter goes on to clarify these AGs' view that "the rescission of the guidance [does not] supersede numerous judicial opinions interpreting EMTALA to require the provision of emergency abortion care." Terminating a pregnancy for the purpose of stabilizing an EMC that threatens the life or major bodily organs or functions of the pregnant patient complies with EMTALA, and arguably should be consistent with state law.

To date, enforcement of state abortion laws post-Dobbs has not resulted in criminal prosecution of any healthcare provider for terminating a pregnancy to treat a pregnant patient's EMC.

Implications for Hospitals and Next Steps/Best Practices

Emergency care is a high-risk, high-stress specialty. To reduce risks in treating pregnant emergency patients, we recommend that all Medicare-participating hospitals with EDs—but especially those in states with significant abortion restrictions—should consider doing the following:

Review and regularly update EMTALA policies and procedures and training programs for ED staff and hospital leadership.

1. These EMTALA written materials and training sessions should clearly:
   1. describe the hospitals' and physicians' EMTALA obligations,
   2. explain what does and does not constitute an abortion under their state's law,
   3. provide guidance on when pregnancy termination is permitted under state law,
   4. include a defined chain of command for escalating clinical and legal questions in real time, and
   5. proper completion of the directive ED forms (described immediately below).
2. EMTALA training should be repeated at least annually, and more often when laws or guidance and corresponding policies change. This is especially important in this situation, when federal and state law continue to evolve in this critical area

Develop and implement specific, directive ED forms to help ensure that clinicians treating emergency patients thoroughly document all relevant clinical findings, risk factors, and medical rationales for providing or deferring particular stabilizing treatment, especially in pregnancy-related emergencies.

1. Forms should help ensure ED personnel fill in all the necessary information to demonstrate compliance with applicable federal and state law.
2. When care is provided to stabilize an EMC in compliance with EMTALA, documentation should explicitly reflect the reasons for the treating physician's determinations of the existence of an EMC, and the medical necessity of the particular stabilizing medical procedures performed.

Consider developing and implementing decision support tools and/or requiring consultation with on-call OB/GYNs and/or legal counsel in complex cases where federal and state requirements may appear to conflict.

+++

Instances of actual conflict regarding pregnancy terminations in medical emergencies should be very rare. However, when such situations do occur, a review of the documentation will be key to assessing whether the care provided was the most appropriate care under the circumstances—in accordance with EMTALA, up-to-date hospital policies, procedures and training, and state standards of care.

[View source.]