In a major move on abortion policy, the Trump administration just withdrew Biden-era guidance on emergency abortions. The guidance had interpreted the Emergency Medical Treatment and Labor Act (EMTALA) as requiring access to abortion in certain medical emergencies, even in places where abortion is a crime.
The revocation by the Centers for Medicare and Medicaid is unlikely to help hospitals and doctors who were already unsure how EMTALA would be interpreted or enforced. But an accompanying statement from CMS hinted at a broader change, stating that EMTALA required hospitals to prevent serious risks to “the health of a pregnant woman or her unborn child.” Understood in this way, EMTALA under the Trump administration could further restrict how doctors address emergencies, regardless of states’ abortion laws.
Though the White House has reinforced that hospitals have duties to fetal patients too, it has not explained how hospitals should carry out those duties.
Congress passed EMTALA in 1986 to stop hospitals from turning away patients who couldn’t afford to pay, especially women in labor. In the wake of the Supreme Court’s decision overturning abortion rights, the Biden administration issued guidance on EMTALA requiring hospitals and physicians participating in Medicare to provide abortions in certain medical emergencies, even in states that ban abortion.
In theory, EMTALA could be a powerful check on state bans; violators could face fines and even exclusion from the Medicare program. What's more, EMTALA, a federal law, could trump conflicting state laws.
In practice, it wasn’t clear how much of a difference the Biden administration’s guidance was making. A congressional investigation in December 2024 found that hospital lawyers were often inaccessible and offered confusing advice to doctors, even with the Biden guidelines in place. It wasn’t clear how strongly the federal government would come after offenders, and hospitals had to weigh that risk against the threat of prosecution and fines in states where abortion is banned.
The courts didn’t help clear things up either. The two most prominent lawsuits involved the Biden administration suing Idaho over its ban (which only has an exception for the life of the mother) and Texas suing the federal government over its guidance. In both cases, abortion opponents seized on language in the statute referring to the health of “the health of the woman or her unborn child.” Anti-abortion lawyers insisted that, under this wording, EMTALA imposed equal obligations toward pregnant women and unborn patients. When those obligations conflicted, the argument went, individual physicians would have to decide what to do, and state laws criminalizing abortion would break the tie.
While the conservative Fifth Circuit sided with Texas on this question, lower courts blocked enforcement of Idaho’s law. The Supreme Court agreed to step in, but ultimately dismissed the petition as improvidently granted. In an opinion by Justice Samuel Alito, however, three of the court’s most conservative justices dissented, echoing the argument that EMTALA created obligations toward fetal patients and thus couldn’t require hospitals to allow any abortion.
Will the Trump administration impose penalties on hospitals in states that protect abortion as a right?
There’s just one problem with this theory: EMTALA’s text. The original bill did not reference unborn patients. In 1989, Congress passed amendments meant to clarify the law’s scope. Those amendments created two categories of emergency condition, those that did not involve labor and those that did. Almost all of EMTALA’s references to the “unborn child” fall in the latter category, where the appropriate way to stabilize a patient is to successfully deliver a baby. Only once is the term mentioned around non-labor emergencies — the category of emergencies where abortion would be considered.
Simply mentioning the term “unborn child” doesn’t necessarily mean that Congress wanted to recognize fetal patients’ rights. In fact, limiting mentions of the “unborn child” almost entirely to scenarios where labor has already begun suggests the contrary.
Furthermore, the use of the term hardly answers what should happen when a pregnant woman’s life or health are clearly imperiled. Though the Trump administration has reinforced that hospitals have duties to fetal patients too, it has not explained how hospitals should carry out those duties. Will the administration act if a hospital doesn’t prioritize the needs of the unborn patient, or strike the right balance between the fetus and pregnant woman? Anti-abortion medical organizations like the American Association of Pro-Life Obstetricians and Gynecologists have issued guidelines requiring hospitals to use “humane medical interventions that aim for both mother and her unborn child to live when possible and do not inflict direct violence on the unborn child.” Will the Trump administration require hospitals to use these methods when addressing emergencies?
Much of the debate about EMTALA so far has focused on states where abortion is banned. But if the Trump administration does enforce EMTALA to protect fetal patients, will it impose penalties on hospitals in states that protect abortion as a right?
After all, though anti-abortion forces’ reading of EMTALA focuses on the text of the law, that interpretation is consistent with their broader ambition: to confer constitutional rights of fetuses from the moment of fertilization.
The 2024 GOP platform nodded to this theory, implying that the Fourteenth Amendment, which addresses due process and equal protection, already protects the unborn child. In Minnesota, an anti-abortion lawyer is challenging the constitutionality of the state’s liberal abortion law by arguing that it violates the rights of the unborn child. Another fetal personhood suit just reached the 2nd Circuit Court, where a panel of judges appointed by George W. Bush and Donald Trump rejected the plaintiffs’ claims on a technicality.
At the moment, the primary effect of the administration’s move on EMTALA will be more confusion for hospitals and physicians. But the administration’s references to the unborn child can’t be ignored. In the longer term, the end of the Biden-era guidance may be the tip of the sword further carving up abortion protections, even in states where that right is still protected.