Dive Brief:

• Tenet Healthcare and HCA Healthcare shareholders voted by a landslide during annual meetings this spring against proposals calling for details on the risks of providing emergency abortion services in states with restrictive abortion laws. 
• The proposals, presented by venture capital firm Rhia Ventures on behalf of the Marguerite Casey Foundation for Tenet and the United Church Funds for HCA, garnered just 5.1% support of Tenet shareholders and 8.1% support of HCA shareholders, according to Proxy Monitor.
• It’s the second time Rhia has tried to advance such proposals, arguing that failing to clarify policy could leave the systems exposed to significant legal and reputational liability. Similar proposals were also rejected in 2023.

Dive Insight:

Shareholder activists argued HCA and Tenet should proactively clarify their policies so patients understand what services are available to them and providers know whether they will be protected for providing care in states that severely restrict or criminalize abortion.

The proposals asked the health systems to detail training for providers and how hospitals would transfer and refer patients they were unable to care for due to state laws or lack of available personnel. 

HCA and Tenet both are heavily concentrated in markets with abortion bans, according to the shareholders.

About 70% of HCA’s 182 U.S.-based hospitals are in states that have adopted laws severely restricting access to abortion, according to the shareholder proposal. HCA’s Florida and Texas facilities alone comprise 50% of its portfolio. 

Meanwhile, about 66% of Tenet’s acute care hospitals operate in states that have severely restricted access to abortion, according to the proposal. Nearly 40% of Tenet’s 640 U.S.-based facilities are in states identified by the Center for Reproductive Rights as having the greatest threat of prosecution for providers who offer abortion services, according to a proxy memorandum dated May 14.  

HCA and Tenet executives responded to the shareholder proposals in writing prior to their annual meetings urging shareholders to vote against the policies, arguing they were overly broad asks, unnecessary and functionally useless.

“The scope of the request is very broad and would necessitate a report addressing not only the current laws in each of the 20 states where we operate, but also all proposed bills and regulations, speculation about the result or outcomes of relevant pending state-level litigation, and any current or proposed administrative policies of state governmental bodies,” HCA wrote to shareholders on March 15. “Further, whatever information such a report would yield, it would quickly become dated, as proposed and final laws and regulations in this area change frequently.” 

Tenet agreed, adding it had ample risk mitigation processes in place already.

“Each facility and its medical staff have 24-hour-per-day access to Tenet counsel with expertise in applicable healthcare laws, including those laws related to abortion services, which we believe adequately safeguard the Company’s interests,” Tenet wrote in its own proxy statement. 

The shareholder proposals come as health systems navigate murky legal territory in a post-Roe America where federal and state laws increasingly diverge over whether providers must — or can — provide emergency abortion services. 

The right to receive medical care during life-threatening emergencies has been enshrined in law since 1986 under the Emergency Medical Treatment and Active Labor Act. The federal government argues that right preempts state-level abortion restrictions, such as those passed in Idaho and Texas. However, states seeking to limit abortion disagree, and in some cases want to ban offering such services. 

No clear answer has emerged. However, the Department of Justice is currently defending its interpretation of EMTALA in front of the Supreme Court, which could provide clarity for providers and patients as soon as this summer.