New WA rule states abortion care must be provided in emergencies
A policy ensuring access to lifesaving procedures performed during miscarriage was started by former Gov. Inslee and will be finalized by Gov. Ferguson.
February 24, 2025
On his way out, former Gov. Jay Inslee directed the state Department of Health to issue a policy ensuring access to emergency abortion care in Washington hospitals. The permanent rule — expected to be finalized soon and supported by Inslee’s successor, Gov. Bob Ferguson — comes at a critical juncture for abortion rights: the growing number of states preventing emergency abortion care through bans that went into effect after the loss of national abortion protections, and the start of President Donald Trump’s second administration.
State-level policies shielding emergency access to abortion at the state level may soon be the deciding factor in whether a patient receives life-saving treatment or is denied.
Technically, access to abortion in an emergency is protected under the Emergency Treatment and Labor Act (EMTALA), a federal law requiring hospitals to provide emergency care when patients need it, even if that care includes abortion.
But the reversal of Roe v. Wade has put providers in the precarious position of facing prosecution for standard abortion and miscarriage care, leading to denied care that preceded potentially preventable deaths in states that have strict bans on abortion procedures and introducing ambiguity as to when exceptions for emergency treatment are allowed.
“A rule that says you cannot withhold care because a person is pregnant, and you cannot prioritize continuing their pregnancy over their own safety without their informed consent, feels like what existing law actually already says, and yet we are not seeing people follow it,” said Sara Ainsworth, chief legal and policy director with the reproductive justice legal group If/When/How.
If/When/How operates a national hotline pregnant people can call for clarification on abortion access and support where they live. Ever since the reversal of national abortion protections in the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health, said Ainsworth, the helpline has received calls from people denied abortion care in emergencies, despite protections under EMTALA.
“States have ignored [EMTALA],” said Ainsworth. “This new government is highly unlikely to enforce anyone’s rights under EMTALA to get care, and so I think that it makes sense for the states to take corrective action on their own to make sure that our own laws and rules ensure that hospitals provide emergency care.”
In 1973, the Supreme Court case Roe vs. Wade established that the right to have an abortion was protected nationally under the U.S. Constitution, but in 2022, Dobbs reversed the precedent set by Roe, leaving decisions about abortion access to the states. That ruling was followed by numerous states restricting access to abortion health care, including Idaho, Texas and Georgia.
Last year the Supreme Court took up — and ultimately dismissed — Moyle v. United States, a case involving Idaho’s near-total abortion ban, which violated emergency care protections under EMTALA. The dismissal reestablished that Idaho doctors could provide abortions as emergency care.
Before the June ruling on Moyle, Inslee requested that the state Department of Health clarify that Washington hospitals are legally obligated to provide abortion care in emergencies. In his directive, issued just before leaving office, Inslee stated that additional clarity was needed to ensure access to treatment.
“Subsequent events,” his directive noted, made it necessary to strengthen safeguards for abortion access by codifying legal rules around emergency abortion care, in order to “promote patients’ access to needed care and health care providers’ ability to serve their patients in a manner consistent with their sound professional judgment.”
Washington’s new governor backs that rule.
“In this uncertain climate, we fully support the emergency abortion rule Gov. Inslee directed, and are committed to ensuring the rule is followed,” said Brionna Aho, Ferguson’s spokesperson. And as the Trump regime continues, potentially embattling abortion rights further, “[w]e’ll continue to assess any actions the administration takes, while working to protect access to reproductive health care in Washington,” she said.
According to a spokesperson with the Department of Health, the agency released provisional emergency rules for hospitals last month. The policy specifies that hospitals in the state are not allowed to deny treatment based on pregnancy status, and cannot prioritize continuing a pregnancy or the survival of a fetus over the person carrying it, unless it’s the explicit wish of the patient.
“At the Washington State Department of Health, we believe in equitable, optimal health for all, which includes access to reproductive services,” a Department of Health spokesperson told Cascade PBS. “Emergency abortion services are critically important for the safety of people across our state and people seeking care in Washington.”
Ferguson issued three executive orders on his first day as governor, including one directing the Department of Health to “convene a roundtable of medical providers, reproductive health experts, and policymakers to explore strategies for protecting and facilitating access to reproductive health care in the state of Washington.”
Reproductive rights advocates cheered the order. “Within his first minutes after taking office, Governor Bob Ferguson has made it clear that sexual and reproductive health access and rights will remain a top priority for his administration,” said Courtney Normand, Washington state director for Planned Parenthood Alliance Advocates.
But the second Trump administration has already made a number of decisions to narrow access to abortion. The administration has reinstated the global gag rule, a policy that pulls funding from NGOs around the world that provide information on abortion — a typical reversal when power changes hands between Democrats and Republicans. Trump has also signaled a rejection of health care norms and an unwillingness to participate in global public health efforts. The Defense Department has ended a policy that funded out-of-state travel for service members seeking abortion care or fertility treatments, and the Trump administration has scrubbed websites that once housed public health information on topics like HIV and LGBTQ+ health.
Within this political environment, states are left to clarify their own policies on public health. To Ainsworth, Washington’s new Department of Health rule is an important development in localizing abortion policies rather than expecting any kind of intervention from the federal government.
“I think it’s a positive step and also a well-thought-out legal one,” she said. By clarifying existing state law, she added, “it takes it out of federal hands.”