Trump Administration Rescinds Biden Administration's EMTALA Preemption Guidance

On June 3, 2025, the Trump Administration announced that it rescinded the Biden Administration’s guidance issued on July 11, 2022. The Biden Administration’s guidance advises hospital providers that, under the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”) they are legally protected to offer life-saving abortion services to patients and others experiencing pregnancy loss in emergency situations (the “Guidance”). The Guidance further states that it is up to the medical provider to determine whether an emergency medical condition exists and any state laws that provided a more restrictive definition of an emergency medical condition were preempted by EMTALA. “Thus, if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.” The Medicare Conditions of Participation define an emergency medical condition as a condition that can reasonably be expected to: (i) place the health of the woman in serious jeopardy; (ii) result in serious impairment of bodily functions; or (iii) result in serious dysfunction of any bodily organ or part; or with respect to a pregnant woman, (iv) there is inadequate time to effect a safe transfer before delivery; or (v) the transfer may pose a threat to the health or safety of the woman or unborn child. See, 42 C.F.R. § 489.24. Several states with restrictive abortion laws (i.e., Texas and Idaho) have challenged the position set forth in the Guidance that EMTALA preempts the state’s strict abortion laws. The preemption argument prevailed in Idaho and failed in Texas.

In rescinding the Biden Administration’s Guidance, the Trump Administration stated that hospitals are still required to comply with EMTALA. While EMTALA does not specifically address abortion, the rescinding of the Guidance will undoubtedly create much uncertainty in states which have restrictive abortion laws, putting many patients and providers on uncertain footing. Notwithstanding, EMTALA clearly requires that if an emergency medical condition exists, the hospital must provide either stabilizing treatment or follow the EMTALA rules for transfer to another hospital provided that the benefits of the transfer outweigh the risks. We expect that the rescinding of the Guidance will precipitate further court review of whether EMTALA preempts the abortion laws of any state which limits the ability of the provider to perform an abortion to prevent undue harm to the mother. In the meantime, providers and patients remain at risk.