Indiana legal experts, physicians worry about Trump's revocation of emergency abortion guidance

The Trump Administration last week rescinded Biden-era guidance requiring hospitals to provide emergency abortions to women when they are necessary to stabilize their medical condition. 

The guidance was especially impactful for some states in the Midwest and South with total or near-total abortion bans.

The guidance was issued in 2022 following the U.S. Supreme Court’s decision to overturn Roe v. Wade, ending constitutional protection for abortions.

The guidance was intended to preserve abortion access in extreme cases and leaned on the Emergency Medical Treatment and Active Labor Act, or EMTALA. The 1986 law requires hospitals that receive federal funding to provide emergency care and stabilize a patient before they can send them elsewhere regardless of the patient’s insurance status and ability to pay.

The law did not explicitly mention abortion, though it’s largely been interpreted to include abortion care. 

The Trump administration’s order rescinding the guidance does not tell hospitals to turn away pregnant women in need of emergency care and it noted that federal law would continue to be enforced.

“CMS (Centers for Medicare and Medicaid Services) will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy,” the administration said in a statement. 

But physicians and legal experts still worry about the message that the recission sends and what it means in practice.

Extra layer of assurance

In the Midwest, all states with abortion bans in place have exceptions for the life of the mother. Some states, like Indiana, have near-total abortion bans with a few other exceptions, including things like lethal fetal anomalies and serious health risks for the pregnant woman. Kentucky has a similar ban, but mentions the health exception is to prevent “permanent impairment of a life-sustaining organ.”

But some states, like Oklahoma, have no exceptions for the health of the mother.

Jody Madeira, a professor of law at Indiana University, said that even for states with built-in exceptions to their restrictive abortion laws, the federal guidance provided an extra layer of assurance. 

Madeira said it was the previous administration’s way of assuring physicians they didn’t have to worry about abortion bans when making complicated medical decisions to save the life or health of a pregnant person. 

Now, she worries care may be negatively impacted.

“It's essentially, them [The Trump Administration] saying we're going to leave it up to interpretation for different hospitals about whether or not emergency medical conditions meet their state abortion bans or not,” she said. 

When reached for comment, both Indiana University Health and Community Health Network declined to comment on the change. Ascension St. Vincent did not respond to WFYI's request for comment. A spokesperson for IU Health did, however, note that Indiana’s abortion ban includes an exception for the life and health of the mother. 

But legal experts say clarity, like the guidance provided by the Biden Administration, is still important — particularly for smaller rural hospitals. 

“It's great that there are certain healthcare providers who have a robust legal department and have a clear understanding of what support they have under federal law,” said Chris Daley, Executive Director for the American Civil Liberties Union of Indiana. 

“We know that there are hospitals at various levels around the state that folks go into with emergencies, and having this level of guidance, particularly in some of our smaller hospitals, is incredibly helpful.”

Even under the Biden guidance on EMTALA, investigations by the Associated Press and ProPublica have found pregnant women were turned away from hospitals despite being in medical distress. Many of them were in states with abortion bans. 

That’s what makes clear guidance so important, said Tracey Wilkinson, an associate professor of obstetrics and gynecology at Indiana University School of Medicine. The Trump Administration’s decision to pull back on the guidance makes things more uncertain.

“This causes a lot of confusion on the ground for patients, for clinicians, for like anybody who has a hospital as to how to interpret these laws that might be in conflict of one another,” Wilkinson said.

She said it puts physicians into a murky territory between state and federal law, and could push some physicians to delay care in hopes of avoiding a lawsuit. 

Daley of the ACLU said revoking the guidance does nothing to benefit women’s health in the long run. 

“Rescinding that guidance simply creates more doubt and confusion for medical providers,” he said.

Contact Health Reporter Benjamin Thorp at bthorp@wfyi.org.

Side Effects Public Media is a health reporting collaboration based at WFYI in Indianapolis. We partner with NPR stations across the Midwest and surrounding areas — including KBIA and KCUR in Missouri, Iowa Public Radio, Ideastream in Ohio and WFPL in Kentucky.