Executive Order  No. 633: Protecting Access to Emergency Abortion Care in Massachusetts

WHEREAS, Massachusetts must continue to prioritize reproductive freedom and access to reproductive health care services, including emergency medical treatment and active labor services, for patients in Massachusetts;

WHEREAS, the Massachusetts State Constitution has long provided a guarantee of reproductive rights independent of and more expansive than any protection provided by the United States Constitution, and the General Laws have long required that access to reproductive health care services, including access to emergency abortion care, be readily available in Massachusetts;

WHEREAS, Massachusetts has been a leader in implementing measures to protect reproductive rights and to provide for continued access to reproductive health care services, including Chapter 127 of the Acts of 2022, known as Massachusetts’s 2022 Shield Law, even while other States have adopted laws that drastically limit or prohibit access to such services, which together may lead more individuals to seek reproductive health care services from Massachusetts health care providers;

WHEREAS, in 1986, the United States Congress enacted the Emergency Medical Treatment and Labor Act to ensure public access to emergency medical care regardless of the patient’s ability to pay;

WHEREAS, pregnancy termination is necessary to avoid the risk of loss of life of a pregnant person or serious harm to their health in a number of medical emergencies;

WHEREAS, almost twenty percent of pregnancies in the United States involve a visit to the emergency department, and there is a wide range of medical conditions that might require emergency abortion care to prevent risk of infection, sepsis, hemorrhage, loss of fertility, or death;

WHEREAS, hospitals are still required to provide emergency medical treatment to stabilize a patient, including abortion, under the Emergency Medical Treatment and Labor Act, regardless of state bans on abortion, as confirmed by the Biden Administration in a memorandum issued after the Supreme Court overturned the constitutional right to abortion in Dobbs v. Jackson; and

WHEREAS, protecting access to the full range of emergency medical treatment and active labor services, including access to life-saving and stabilizing abortion care in the case of a medical emergency, is a priority for Massachusetts;

NOW, THEREFORE, I, Maura T. Healey, Governor of the Commonwealth of Massachusetts, by virtue of the authority vested in me by the Constitution, Part 2, c. 2, § I, Art. I, do hereby order as follows:

Section 1.  The executive branch of the Commonwealth of Massachusetts, including all its constituent parts and all entities directly or indirectly subject to the authority of the Governor, shall continue to reaffirm and recognize that Massachusetts state law protects the right to an abortion.  Specifically, all such entities shall construe Massachusetts law as:

• protecting a person’s right to an abortion from any state governmental interference, see M.G.L. c. 112, § 12L;
• affirming the right of physicians, physician assistants, nurse practitioners, and nurse midwives to perform abortions before twenty-four weeks of pregnancy, see M.G.L. c. 112, § 12M;
• allowing physicians to perform abortions after twenty-four weeks of pregnancy for specified medical reasons, see M.G.L. c. 112, § 12N;
• protecting health care providers and pharmacists in Massachusetts from professional licensure consequences and out-of-state legal actions when those persons provide or assist in the provision of reproductive health care services or gender-affirming health care services in Massachusetts, see Chapter 127 of the Acts of 2022 (known as Massachusetts’s 2022 Shield Law) and Executive Order No. 609, Protecting Access to Medication Abortion Services in the Commonwealth; and
• shielding patients from out-of-state legal actions when they seek the provision of reproductive health care services or gender-affirming health care services.

Section 2.  All executive branch agencies shall continue to reaffirm and acknowledge that Massachusetts law explicitly prohibits acute hospitals from refusing admission and treatment to any patient based on method of payment and provides a right to prompt life saving treatment in an emergency without discrimination on account of economic status or source of payment.  See M.G.L. c. 111 § 51D; M.G.L. c. 111 § 70E.

Section 3.  The Commissioner of Public Health shall forthwith issue guidance to hospitals that as a condition of licensure in Massachusetts, all hospitals must comply with all applicable state and federal statutes and regulations pertaining to hospitals, including the Emergency Medical Treatment and Labor Act (EMTALA) statute codified at § 1867 of the Social Security Act, the accompanying regulations in 42 C.F.R. § 489.24, and the related requirements at 42 C.F.R. 489.20(l), (m), (q), and (r).  The Commissioner of Public Health’s guidance shall provide that the violation of any relevant state or federal statute or regulation pertaining to operation of a hospital, including a violation of EMTALA or related state statutes and regulations, could result in the Department of Public Health refusing to renew or revoking a license under 105 CMR 130.130.  In addition, the Commissioner of Public Health’s guidance shall provide that the failure of a hospital to provide abortion care when required to avoid the risk of loss of life of a pregnant person or serious harm to their health is a violation of EMTALA and related state statutes and regulations, and that such noncompliance constitutes a regulatory violation which could result in revocation of a hospital’s license to operate in the Commonwealth.

Section 4.  The Commissioner of Public Health shall forthwith issue guidance to health care providers licensed by the Department of Public Health’s Boards of Registration, including nurses, pharmacists, and physician assistants and physicians licensed by the Board of Registration in Medicine, providing that such providers have a professional obligation to ensure treatment of emergency medical conditions consistent with federal and state law, including when necessary to avoid the risk of loss of life of a pregnant person or serious harm to their health and that a health care provider’s failure to ensure treatment of an emergency medical condition may violate recognized standards of practice and may be grounds for discipline of the individual’s license to practice under 244 CMR 7.00, 247 CMR 10.00, and 243 CMR 1.00 and related state statutes and regulations.

Section 5.  The Commissioner of Public Health shall take all appropriate actions to enforce this Executive Order.

Section 6.  The Division of Insurance shall forthwith issue a Bulletin to Commercial Health Insurers, Health Maintenance Organizations, and Blue Cross and Blue Shield of Massachusetts, Inc. (“Carriers”) to identify the Division of Insurance’s expectations regarding Carriers’ requirements to provide coverage for abortion, abortion-related care, and medication abortion services.  The Division of Insurance shall also forthwith issue a Bulletin to Commercial Insurers Offering Medical Malpractice Coverage to identify the Division of Insurance’s expectations regarding medical malpractice coverage for providers that may provide reproductive or gender-affirming care.

Section 7.  This Executive Order shall take effect immediately and shall continue in effect until amended, superseded, or revoked by subsequent Executive Order.