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HHS Reinforces Hospital Duties in Light of Texas Abortion Law (1)

Sept. 17, 2021, 5:41 PMUpdated: Sept. 17, 2021, 6:37 PM

The Biden administration said that in light of a new Texas anti-abortion measure, it will fortify enforcement of existing federal laws requiring hospitals to take care of pregnant people and protect health-care workers who have performed abortions from employment discrimination.

The Friday announcement by the Department of Health and Human Services comes in response to the Texas law—which took effect Sept. 1—that bans most abortions in the state after six weeks of pregnancy, without exceptions for rape or incest. That law also allows members of the public to sue abortion providers suspected of breaking the law and provides for bounties of $10,000 per illegal procedure.

“HHS is taking actions to support and protect both patients and providers from this dangerous attack on Texans’ health care,” HHS Secretary Xavier Becerra said in a statement.

“Today we are making clear that doctors and hospitals have an obligation under federal law to make medical decisions regarding when it’s appropriate to treat their patients. And we are telling doctors and others involved in the provision of abortion care, that we have your back,” he said.

The Justice Department on Sept. 14 asked for an emergency court order to block the Texas law. A judge on Thursday declined its request to move up an Oct. 1 hearing on that request .

The Centers for Medicare & Medicaid Services issued a memo Friday reinforcing that doctors, nurses, and other health-care providers must screen and stabilize any patients, “irrespective of any state laws or mandates that apply to specific procedures,” under the Emergency Medical Treatment and Labor Act.

The CMS said doctors must treat patients that come to the emergency department and that federal law “preempts any directly conflicting state law or mandate that might seek to prevent such treatment.”

Federal laws like EMTALA are likely to be used in challenges against the Texas state law.

The Texas law could also present an ethical dilemma for doctors, who have an obligation to counsel pregnant patients on all their available options even if they don’t perform abortion procedures themselves.

The HHS reminded health-care employers who receive federal money that they aren’t allowed to discriminate against health workers who have performed or assisted in an abortion under the Church amendments.

The department also gave Title X family planning grantees an additional $19 million in funds. It said it plans to award up to $10 million in additional grants to Title X applicants who can “demonstrate a need resulting from an influx of clients” as a result of the Texas law.

(Updated with additional reporting throughout)

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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