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HHS clarifies existing federal law, amid pressure to mount a bigger response to the abortion ruling
The Biden administration is reminding doctors that they must terminate a pregnancy if doing so is necessary to stabilize a patient in an emergency medical situation.
The Department of Health and Human Services issued updated guidance yesterday — an attempt to clarify when providers can perform an abortion in states with bans on the procedure.
Did the memo contain new policy? No, it didn’t. The federal health department was pretty clear on that point. “This memorandum is being issued to remind hospitals of their existing obligation to comply with EMTALA and does not contain new policy,” a note at the top of the document states.
Instead, the guidance sought to cut through the confusion and arm physicians with a defense if they get sued by their state. Federal law trumps state abortion bans and protects clinicians’ judgment when administering treatment, regardless of the state they’re practicing in, HHS said.
Some providers welcomed the assurances, although it’s unlikely to subdue Democratic activists’ calls for the White House to push the limits of what it can do to respond to the Supreme Court decision overturning Roe v. Wade’s decades-old protections. President Biden signed an executive order last week aimed at directing cabinet secretaries to take a number of steps to bolster abortion rights, which including shoring up emergency care.
- “There’s a lot of pressure to do something,” said Alina Salganicoff, a senior vice president at the Kaiser Family Foundation. “But the question is, what? And how far can you move that dial?”
Maya Goldman, Modern Healthcare:
You’re going to start hearing a lot more about EMTALA, a federal law that requires providers to offer life- or health-saving emergency care. @CMSGov guidance out today clarifies that EMTALA preempts state laws restricting access to abortion: https://t.co/JX6CJvtShL
— Maya Goldman (@mayagoldman_) July 11, 2022
The guidance centers on the Emergency Medical Treatment and Active Labor Act, known as EMTALA. Enacted in 1986, the law requires that anyone coming into an emergency department be stabilized and treated, regardless of their ability to pay for care.
All abortion bans currently in effect permit providers to terminate a pregnancy to protect the life of the mother. Yet they can be vague, leaving doctors to navigate a complex environment of what constitutes a life-threatening condition. The vast majority of abortions are elective, rather than due to an emergency medical condition. Yet some providers have feared they may be forced to choose between breaking their doctors’ oath and breaking the law, our colleague Ariana Eunjung Cha recently reported.
- “With the change in the law, people providing certain services have raised questions to the authorities inside the hospital — the legal authorities — just to make sure what their direction should be,” said Chip Kahn, president of the Federation of American Hospitals, which represents for-profit hospitals.
Doctors don’t need to wait for a condition to worsen or for the patient to be close to death before intervening, senior HHS officials told reporters yesterday. EMTALA also permits a provider to terminate a pregnancy when an emergency condition could seriously impair the patients’ health.
And failing to do so when it’s necessary carries steep penalties: Hospitals could face fines or be booted from the Medicare program.
Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law:
I applaud @SecBecerra on EMTALA. If a pregnant woman’s health is in jeopardy, a hospital must stabilize or treat her. That means an abortion or miscarriage management even in a state that has no exception for the woman’s health or life. It’s unethical & unlawful not to give care
— Lawrence Gostin (@LawrenceGostin) July 11, 2022
But the memo also nodded to this fact: EMTALA doesn’t prevent a doctor from being sued, though it could serve “as a defense to a state enforcement action.” Essentially, HHS is arguing that the long-standing federal emergency medical law supersedes any conflicting state laws that may otherwise prohibit an abortion.
“I think [the guidance] was needed,” said Diana Nordlund, an emergency physician in Michigan and spokesperson for the American College of Emergency Physicians. “But I also don’t see it as a panacea, because, of course, as the guidance listed, it doesn’t completely obviate the potential for legal action.”
Another ACEP official, Laura Wooster, said a “significant amount of uncertainty” still remains for emergency physicians — and that the trade group is assembling a team of medical experts to examine the range of clinical and legal implications of a post-Roe world.
Biden officials push to offer second booster shot to all adults
The Biden administration is developing a plan to allow all adults to receive a second coronavirus booster shot, pending federal agency sign-offs, as the White House seeks to blunt a recent surge, The Post’s Dan Diamond, Laurie McGinley and Lena H. Sun scoop.
Officials say they’re hoping to broaden access to boosters within two weeks to use up vaccine doses nearing their expiration date and to avoid having the strategy conflict with the administration’s fall booster campaign. That effort is likely to kick off in October, using modified vaccines specifically tailored to target the omicron subvariants. Swiftly expanding access could also help allow people who are boosted now receive the reformulated shots when they become available.
A second booster dose is currently only available for those 50 and older and some immunocompromised people. But convincing Americans’ to get another shot could be an uphill battle, since only 34 percent of eligible people have received their first booster dose.
But … administration officials are concerned by data suggesting immunity wanes within the first several months of the first booster shot. Hospitalization and death levels are climbing, though they remain much lower than January’s peaks.
Some outside experts say it’s too early to offer the shot to healthy people under 50, saying there isn’t much data to support the strategy. The booster plan would need formal sign off from regulators, though it has the backing of White House coronavirus czar Ashish Jha and Anthony S. Fauci, the government’s top infectious-disease expert.
In an interview with our colleagues, Fauci said he’s “leaning” toward allowing second booster shots for younger adults, pending authorization from the Food and Drug Administration and the nod from the Centers for Disease Control and Prevention.
Federal watchdog: CDC should improve how it tracks coronavirus spread via air travel
The Centers for Disease Control and Prevention will work to improve how it tracks and analyzes the spread of the coronavirus on planes, following a report released yesterday by a government watchdog agency that found its current data system “needs substantial improvement,” Bloomberg News reports.
The Government Accountability Office found that the agency’s technological tools were outdated, cumbersome and prone to inaccuracies that hinder its ability to monitor public health risks and warn officials about possible disease threats in a timely manner.
The GAO recommended that the CDC redesign its system so that it’s able to conduct broader, more effective surveillance and subsequently improve its contact tracing. In response to the report, the agency said that it’s working with the Biden administration and Congress to enhance its data capabilities.
Abortion rights advocates submit signatures for Michigan ballot measure
Michigan voters could soon decide the future of abortion access in the state after a coalition of advocates said they turned in a historic number of signatures to put a constitutional amendment protecting the procedure on November’s ballot.
The effort puts even more attention on Michigan’s election, where the state’s vulnerable Democratic governor and attorney general have made abortion rights a focal point of their reelection campaigns.
The amendment seeks to enshrine the right to make and carry out decisions related to birth control, pregnancy, prenatal care and childbirth.
Key context: The push to codify abortion access comes after the Supreme Court returned the issue to the states, where, in Michigan, performing the procedure is a felony in most cases under a pre-Roe ban. A judge has since temporarily suspended enforcement of the 1931 law, protecting access to legal abortions for now.
The 753,759 signatures submitted by the campaign are nearly double the amount needed to qualify for a ballot initiative. Organizers of the ballot measure told The Health 202 last week they’d put signatures through a “rigorous checking process,” expressing confidence that the amendment would meet the threshold to get onto the ballot.
Campaign organizers deliver signed petitions to the Michigan Bureau of Elections:
Meanwhile, across the United States…
- In Arizona: A federal judge blocked a 2021 state “personhood” law that extends all legal rights to unborn children.
- In Minnesota: A judge deemed several of the state’s long-standing abortion restrictions unconstitutional and ordered law enforcement to stop enforcing them immediately, including a 24-hour waiting period and requirement that only physicians perform the procedure.
- In Utah: A sweeping new abortion ban will not be enforced until there’s a final decision on whether the trigger law violates the state’s constitution, a judge ruled yesterday. Almost all abortions are still banned after 18 weeks in the state under a 2019 law that took effect after the court’s ruling overturning Roe, the Salt Lake Tribune reports.
- Mayo Clinic Laboratories became the second commercial lab in the United States yesterday to begin testing for monkeypox, as a part of a broader effort to ramp up the nation’s response to its largest outbreak of the virus, the CDC announced.
- Sen. Richard Blumenthal (D-Conn.) will miss Senate votes this week after testing positive for the coronavirus, adding to the list of Democrats who are out this week.
- New Yorkers, who have previously been among the most vigilant, appear to be shrugging off the latest coronavirus wave, the New York Times reports.
How will illegal abortions be prosecuted? 1968 NYPD manual offers hints. (By Tom Sherman | The Washington Post)
Biden’s abortion response curbed by fears of another Supreme Court showdown (by Adam Cancryn | Politico)
One in six calls to National Suicide Prevention Lifeline end without reaching a counselor (by Brianna Abbott, José Luis Martínez and Ryan Tracy | The Wall Street Journal)
Thanks for reading! See y’all tomorrow.