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Biden’s order to protect women doesn’t instantly resolve the problem of Arkansas’s abortion ban

Arkansas News Headlines
Arkansas News Headlines

The Biden administration issued an executive order Monday to protect reproductive health care, but it creates a clear legal conflict for Arkansas doctors faced with problem pregnancies. From the order

HHS, through the Centers for Medicare & Medicaid Services (CMS), issued clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA) and reaffirmed that it protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations. In addition to the guidance, Secretary Xavier Becerra, in a letter to providers, made clear that this federal law preempts state law restricting access to abortion in emergency situations – PDF*.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” said HHS Secretary Xavier Becerra. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care. Protecting both patients and providers is a top priority, particularly in this moment. Health care must be between a patient and their doctor, not a politician. We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”

“Everyone should have access to the health care they need — especially in an emergency,” said CMS Administrator Chiquita Brooks-LaSure. “Under federal law, providers in emergency situations are required to provide stabilizing care to someone with an emergency medical condition, including abortion care if necessary, regardless of the state where they live. CMS will do everything within our authority to ensure that patients get the care they need.”

The EMTALA statute requires that Medicare hospitals provide all patients an appropriate medical screening, examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. Stabilizing treatment could include medical and/or surgical interventions, including abortion. If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.

Read the Secretary’s letter to health care providers – PDF*.

Arkansas law does not allow abortions to preserve the health of the mother. Period. No exceptions. No exceptions for minors or rape victims or for non-viable fetuses.

Arkansas law says:

A person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.

An emergency is further defined as “a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”

The penalty for violating this law includes fines and a prison sentence up to 10 years.

What is the moment when an abortion is necessary to save a life? Examples already noted in other states indicate this is not an easy question to answer.

But here’s the legal isue:

Can an executive order override the robust federalism extended to states by the U.S. Supreme Court in overturning a right to abortion? Does the threat of losing federal Medicaid money insure that doctors and hospitals in Arkansas will be protected from prosecution or loss of state-controlled licensure if they disobey the Arkansas law?

I welcome the Biden administration’s effort to provide protection for women and doctors that the Arkansas legislature explicitly refused to provide.

The question now is whether Attorney General Leslie Rutledge and her band of Republican brothers around the country will sue in federal court to challenge this “regulatory overreach,” just as they sued over the federal mask mandate, environmental rules and more? I’ve sent the office that question.

You think the anti-woman sentiment that produced this law couldn’t possibly try to upend the federal regulation. Think again. Consider the dangerous information being put out against abortion for any reason.


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