Mass. moves to protect emergency abortion care ahead of Supreme Court ruling in Idaho case

Gov. Maura Healey issued an executive order Monday safeguarding access to emergency abortion care and reinforcing existing state laws as her administration girds for a Supreme Court ruling this week that could affect reproductive health services across the country.

Healey's order, which coincides with the two-year anniversary of the Supreme Court's decision that overturned Roe v. Wade, emphasizes Bay Staters' right to emergency abortion care and affirms the commonwealth's shield law protecting providers, pharmacists and out-of-state patients who receive abortions here.

Massachusetts hospitals and providers could lose their licenses if they do not provide emergency care outlined in state and federal law, and insurers must cover emergency abortion care, according to newly issued guidance, which officials said affirms existing state law.

The order is being fueled by a pending case over whether Idaho's abortion ban conflicts with federal law requiring certain hospitals to provide "necessary stabilizing treatment" in emergency situations regardless of patients' ability to pay.

Healey expressed concerns earlier this month about the case and how it could affect the commonwealth. Pregnant women in Idaho have been helicoptered out of the state to receive emergency care, Healey said Monday at a press conference, where she was joined by reproductive care advocates, providers, insurers, state officials and lawmakers.

"The court's going to decide whether or not that's constitutional, but we want to be really clear here in Massachusetts that we will make sure that women in Massachusetts always will have access to life-saving emergency care, including abortion," Healey said. "I appreciate the support of the provider and insurance community in standing with us. We hope that the Supreme Court does the right thing and protects access to emergency medical care, but we are not taking any chances, and that's why I'm grateful that everyone has come forward together here."

The order, plus accompanying guidance from the Department of Public Health and Division of Insurance, largely affirm existing state law and protections that were passed in the aftermath of the Dobbs v. Jackson Women's Health Organization decision. But Healey, Attorney General Andrea Campbell and other state officials have increasingly expressed worry about additional threats to reproductive health care from the Supreme Court, even after a recent ruling protecting access to mifepristone medication abortion.

"I think it's really important to be clear to women, to providers, to insurers and all throughout Massachusetts that women will continue to receive emergency care, life-saving care, including abortion," Healey said. "We anticipate a decision from the United States Supreme Court this week and if past is prologue and the fact that a former president, Donald Trump, was able to stack a court that overturned Roe, taking us 50 years backwards, we have to be prepared. We have to be ready, and we wanted to be really clear about the law here in Massachusetts, what it is, and what it will continue to be."

Nearly 20 percent of pregnancies involve emergency department visits, according to Healey's order. Emergency abortion care may be needed to prevent "risk of infection, sepsis, hemorrhage, loss of fertility, or death," the order states.

Campbell said the pending Supreme Court decision could cause confusion, fear and restrictions on abortion care. Campbell said the case hinges on "how close to death a person must be in order to receive emergency medical care."

"This issue is not merely about abortion care — it's about one's right to have a child or not have a child, and the right to parent children in a safe and healthy environment," Campbell said. "It's also about those who may be deciding whether or not to have a child, and if something goes terribly wrong, to make a personal and thoughtful decision with their providers without the interference of government. This is a life or death issue, this is a human rights issue, and everyone should care."

Healey, asked about the prospect of Congress passing a national abortion ban, said she would "absolutely not" enforce it in Massachusetts.

"I won't put one dime or any energy or effort or personnel into enforcing laws that are a direct violation of freedom, and women's freedom and autonomy, and the right to make decisions for themselves and the right to access needed health care," Healey said.

The new DPH guidance says hospitals that violate the federal Emergency Medical Treatment and Labor Act (EMTALA) or related state laws could see their licenses revoked or not renewed. Failing to provide abortion care "when required to avoid the risk of loss of life of a pregnant person or serious harm to their health" constitutes an EMTALA violation, and hospitals' licenses to operate could be revoked under DPH guidance, Healey's office said.

The DPH guidance says licensed health care providers and physicians are obligated to treat emergency medical conditions, including pregnant patients' whose lives are at risk, and that they could be disciplined for not providing care.

"To the women and birthing people in Massachusetts, hear us loud and clear: We are here for you today and every day, and we will not stop fighting on your behalf, not just to preserve but to expand the safe and accessible reproductive care you deserve," Valerie Fleishman, senior vice president and chief innovation officer at the Massachusetts Health and Hospital Association, said. "Two years ago, June 24 was a dark day. But in the time since, it has become exceedingly clear that the Supreme Court decision is no match for the will and resolve of Massachusetts."

Abortions are banned or severely restricted in 21 states following the Dobbs decision, according to the Planned Parenthood League of Massachusetts. In the last year, PPLM says it has seen patients from 15 "restrictive states."

One in five patients are now traveling out of state for abortion care, and Massachusetts logged a 37 percent increase in abortion travel in the months immediately after the Dobbs ruling, PPLM said.

DPH Commissioner Robbie Goldstein said the guidance applies to abortions later in pregnancy, beyond 24 weeks, that are permitted under state law, including in circumstances to save a patient's life. Healey lamented that restrictions in other states are preventing people from getting safer, earlier-stage abortions.

"You're forcing them to later-stage care in other states, which again only contributes more to capacity challenges here, puts women more at risk, and ends up costing a lot, lot more," Healey said. "And you know, there is not a state right now in this country that is more aligned in collective commitment to making sure that we protect women, and that we protect freedom — there's no state more aligned. It is also the case that all of us in Massachusetts are at risk and threatened and harmed by these draconian extremist agendas and positions, whether they're perpetrated by state legislatures or Republican governors, or whether they come from our own United States Supreme Court."

A new DOI bulletin accompanying Healey's order outlines the state's expectations for insurers and their requirements to cover abortions, abortion-related care and medication abortion services, including emergency abortion care. Another DOI bulletin addresses the state's expectations for medical malpractice coverage for providers offering reproductive and gender-affirming care, including emergency abortion care.

Lora Pellegrini, CEO of the Massachusetts Association of Health Plans, joined the administration's press conference at the Grand Staircase in a show of support.

"I am proud to stand with Governor Healey today supporting the right to reproductive freedom and ensuring that Massachusetts women have access to the full complement of reproductive health care, including medication-assisted abortion and emergency abortion care," Pellegrini said in a statement provided by Healey's office. "As states across the country seek to limit access to these essential reproductive health services, MAHP and our member plans applaud the Governor’s efforts to ensure that reproductive health care continues to be provided in the Commonwealth, without interruption."