HHS Rescinds Guidance Aimed at Protecting Emergency Abortions, Commits to FDA Review of Medication Abortion

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On June 3, HHS and the CMS the rescission of 2022 guidance directing hospitals and their physicians to provide abortions in emergency scenarios, regardless of conflicting state laws. Separately, the FDA has committed to reviewing the safety of mifepristone, potentially setting up a repeal of Biden-era policies that expanded access to medication abortion.

CMS’ previous guidance on emergency abortion, issued by the Biden Administration, aimed to clarify providers’ legal obligations under the Emergency Medical Treatment and Active Labor Act (EMTALA) following the aftermath of Dobbs v. Jackson Women’s Health Organization. Under EMTALA, hospitals that receive Medicare funding must provide stabilizing treatment to any individual presenting with an emergency medical condition. The guidance interpreted EMTALA to preempt state laws that would otherwise prohibit abortions in emergency situations, asserting that providers must perform emergency abortion care services without risk of prosecution under state law. Until rescinded, the guidance was in effect in all states except Texas, where it was blocked in court.

CMS has now that the 2022 directives “do not reflect the policy of this Administration,” although CMS “will continue to enforce EMTALA.” Absent further guidance, however, it is not clear whether the Administration believes EMTALA preempts state laws that might limit a hospital’s ability to provide an emergency abortion under these scenarios. For hospitals operating in states with abortion bans, the guidance recission creates new legal uncertainty when determining whether to perform an emergency abortion in compliance with EMTALA and risk state prosecution.

Separately, FDA has plans to reevaluate data on mifepristone. In a letter published on X, FDA Commissioner Marty Makary that the agency would “closely monitor” mifepristone’s safety and efficacy. This follows a decision by the Trump Administration to seek dismissal of a state challenge to FDA’s mifepristone policies on procedural grounds.

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