EMTALA, Abortion Restrictions, and Potential Increased Enforcement: What Hospital Counsel Need to Know Now

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which held that the U.S. Constitution does not confer a federal right to abortion, opened the door to increased state-level abortion restrictions. These restrictions have led to a series of ongoing legal disputes regarding the scope of the Emergency Medical Treatment and Active Labor Act (EMTALA) as it relates to emergency care provided to pregnant women. EMTALA is a federal law compelling Medicare-participating hospitals that operate emergency rooms to provide stabilizing care where required to prevent deterioration in an emergency medical condition. EMTALA’s preemption over abortion restrictions remains in flux, and a July 2026 proposed rule issued by the Centers for Medicare & Medicaid Services (CMS) may result in increased enforcement action against hospitals subject to EMTALA if hospitals violate a particular state’s new abortion restrictions. In a recent report, the Congressional Research Service examined these lawsuits and the broader tension among Dobbs, state abortion laws, and EMTALA, ultimately suggesting that Congress might consider legislation clarifying EMTALA’s preemptive reach, should Congress deem it appropriate.

Overview of EMTALA

EMTALA was enacted in 1986 as part of the Consolidated Omnibus Reconciliation Act (COBRA), with the initial intent of ensuring patient access to emergency medical care and preventing the practice of “patient dumping,” in which uninsured patients were transferred solely for financial reasons from private to public hospitals without consideration of their medical condition or stability for the transfer. EMTALA requires participating hospitals, as a condition of federal Medicare funding, to provide a medical screening exam, stabilizing treatment, and appropriate transfers to any individual presenting at an emergency department seeking emergency care and who are found to have an emergency medical condition. 

EMTALA also sets forth certain administrative requirements (e.g., signage requirements, record keeping requirements, etc.) that participating hospitals must follow. In certain instances in which a hospital or physician negligently violates EMTALA requirements, the U.S. Department of Health and Human Services (“HHS”), Office of Inspector General may impose civil monetary penalties of up to $136,886 for each violation, and physicians that commit repeated or “gross and flagrant” violations may be excluded from participation in Medicare and other federal healthcare programs.

Preemption and Emergency Abortion Services

EMTALA expressly provides that it does not preempt state or local requirements, except for those that directly conflict with it. Following Dobbs and the implementation of state abortion restrictions, questions about the interplay between a healthcare provider’s duty to provide care for an emergency medical condition under EMTALA and state restrictions that limit a provider’s ability to provide abortion services surfaced. 

As part of the Biden administration’s response to state abortion restrictions, HHS issued a guidance document in 2022, accompanied by a letter from the secretary of HHS, regarding the enforcement of EMTALA. The guidance document provided that if a healthcare provider believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition and abortion is the stabilizing treatment necessary to resolve that condition, the healthcare provider must provide such treatment. The guidance document further provided that EMTALA preempts state abortion restrictions to the extent they conflict with EMTALA.

The Fifth Circuit then held this guidance unlawful in its 2024 decision in Texas v. Becerra. The decision affirmed the district court’s injunction preventing enforcement of HHS’s directive that EMTALA preempted state abortion restrictions in certain circumstances. A similar issue regarding EMTALA’s preemption of Idaho’s abortion ban reached the Supreme Court the same year in Moyle v. United States. The district court entered a preliminary injunction preventing enforcement of Idaho’s abortion ban and the Ninth Circuit affirmed. The Supreme Court then granted Idaho’s emergency application for relief, stayed the injunction, and granted Idaho’s petition for certiorari before judgment. The case was ultimately dismissed as improvidently granted (and therefore without a decision on the merits), accompanied by an order lifting the stay and four separate decisions written or joined by all nine Justices.

Justice Kagan, joined in full by Justice Sotomayor and in part by Justice Jackson, concurred in the dismissal, explaining that the federal government was likely to succeed in establishing that EMTALA preempts Idaho law in the circumstances at issue. Justice Barrett, joined by the Chief Justice and Justice Kavanaugh, also concurred in the dismissal, noting that changes in both Idaho law and the parties’ litigating positions had “rendered the scope of the dispute unclear, at best.” Justice Alito, joined in full by Justice Thomas and in part by Justice Gorsuch, dissented. In his view, the Court should have reached the merits of the dispute and held that EMTALA “does not require hospitals to perform abortion.” Finally, Justice Jackson concurred in part and dissented in part, agreeing with Justice Kagan’s preemption analysis but concluding that the Court should have decided the case on the merits. 

In 2025, under the new Trump administration, HHS and CMS announced they were rescinding the 2022 guidance and the letter, which “do not reflect the policy of this Administration.”

Thus, the question of whether, and to what extent, EMTALA preempts state abortion restrictions in emergency circumstances remains unresolved and the subject of active litigation.

Potential Increases to EMTALA Enforcement

On July 2, 2026, CMS issued a proposed rule with updates to the Medicare payment rates for the Hospital Outpatient Prospective Payment System and the Medicare Ambulatory Surgical Center payment system for calendar year 2027 (the “Proposed Rule”). The Proposed Rule includes many significant updates, including the proposal for approved hospital accrediting organizations (AOs) to assess compliance with certain requirements of EMTALA as part of their accreditation and reaccreditation survey processes while preserving CMS’s direct enforcement authority over EMTALA’s core statutory protections. 

Historically, enforcement of EMTALA has occurred through complaint investigations conducted by State Survey Agencies under CMS direction. The incorporation of the review of EMTALA administrative requirements into the AO accreditation and reaccreditation survey process could result in increased EMTALA enforcement activity, which will likely lead to even more questions on EMTALA’s preemptive ability in states with abortion restrictions.

If the Proposed Rule is finalized, hospitals subject to EMTALA located in states with abortion restrictions should act promptly to evaluate their existing emergency department policies and procedures in light of the evolving and region-specific patchwork of EMTALA obligations and state abortion restrictions. Such hospitals are strongly encouraged to engage experienced legal counsel to conduct a comprehensive compliance assessment, identify potential areas of regulatory exposure, and develop protocols that address the interplay between federal and state requirements applicable to their operations.

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The Goodwin Healthcare team will continue to monitor EMTALA preemption and abortion restriction matters. For more information on the issues discussed in this alert, please contact the authors or reach out to Goodwin’s Healthcare group or the Appellate and Supreme Court Litigation group or the Goodwin lawyer with whom you typically consult.

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