By Allison Shelton and Colleen Byrom, Brown and Fortunato
On September 1, 2021, the highly debated Texas Heartbeat Act (“Heartbeat Act”) went into effect. In short, Texas’s new law prohibits a physician from knowingly performing or inducing an abortion if the physician has “detected a fetal heartbeat for the unborn child . . . or failed to perform a test to detect a fetal heartbeat,” and the abortion is not necessitated by a “medical emergency.”
While the legality and enforcement of the Texas Heartbeat Act are currently being litigated, physicians are still bound to comply or be at risk of criminal, civil, and/or administrative penalties. Adding to the complexity of the situation, federal agencies have responded to Texas’s law by reminding health care providers of their obligations under federal law. The Centers of Medicare & Medicaid Services (“CMS”) is one of these agencies.
On September 17, 2021, the Secretary of the Department of Health and Human Services (“HHS”), Xavier Becerra, announced a department-wide response to the Heartbeat Act. HHS’s initiative is designed to increase access to safe and legal abortions in 
Texas in accordance with a directive issued by President Biden. As part of this effort, CMS distributed a memorandum to the state survey agencies entitled “Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or Experiencing Pregnancy Loss.” CMS’s memo reiterates hospitals’ obligations under the Emergency Medical Treatment and Labor Act (“EMTALA”) and indicates that EMTALA’s requirements preempt any conflicting state law or mandate.
EMTALA is a federal statute that provides individuals the right to emergency services regardless of the individual’s ability to pay. Under EMTALA, Medicare-participating hospitals must provide an appropriate medical screening examination to any individual who comes to the hospital’s emergency department to determine the existence of an emergency medical condition (“EMC”) or whether the individual is in active labor. If an EMC exists or the individual is in active labor, then the hospital must provide stabilizing treatment to the individual. If the hospital does not have the capabilities to stabilize the individual, then an appropriate transfer to another hospital should be made.
In the memorandum, CMS indicates that an “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features” are types of EMCs that may occur with pregnant patients. Further, CMS indicates that stabilizing treatment for such patients “could include medical and/or surgical interventions (e.g., dilation and curettage (D&C), removal of one or both fallopian tubes, anti-hypertensive therapy, etc.).”
For pregnant patients with unstable EMCs or who are in active labor, CMS emphasizes that a hospital may not cite a state law, such as the Heartbeat Act, as a basis for transferring the patient to another facility. Rather, to the extent a hospital is capable, the hospital must provide stabilizing treatment to the patient unless the individual or the individual’s representative requests a transfer. Moreover, CMS’s memorandum states: “The EMTALA statute requires that all patients receive an appropriate medical screening, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures.”
The penalties against a hospital for not complying with EMTALA include termination of the hospital’s Medicare provider agreement and/or the impositions of civil monetary penalties (“CMP”). CMS may also penalize physicians individually for violating EMTALA. Such penalties include the imposition of CMPs and/or exclusion from participating in Medicare and Medicaid programs.
At first blush, the Heartbeat Act does not appear to directly conflict with EMTALA because the Heartbeat Act includes an exception for an abortion performed or induced as a result of treatment for a “medical emergency.” However, the definition of a “medical emergency” in Chapter 171 of the Texas Health and Safety Code is narrower than the definition of an EMC under EMTALA.
Texas law defines a “medical emergency” as a “life-threatening physical condition” that “places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” Meanwhile, EMTALA defines an emergency medical condition as a medical condition that in the absence of “immediate medical attention could reasonably be expected to” (i) place “the health of the woman or her unborn child . . . in serious jeopardy”; (ii) result in “serious impairment to bodily functions”; or (iii) result in “serious dysfunction of any bodily organ or part.”
It is clear from CMS’s memorandum that providers are caught between a rock and a hard place due to the dichotomy between Texas law and EMTALA. Accordingly, hospitals should engage in a dialogue with their emergency physicians, obstetrics department personnel, and qualified legal counsel to work through situations in which compliance with both Texas law and EMTALA may pose a challenge. Knowing what should be done before your staff encounter live emergencies can reduce both risk and anxiety.