The moment the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that the Constitution does not confer a right to abortion, abortion advocates began talking about ectopic pregnancies and other medical emergencies that require treatments that usually result in the death of the unborn child. They argued or implied that the overturning of Roe v. Wade would outlaw treatments in these emergency situations. Fact checkers, pro-life legal experts, and defenders of Dobbs quickly pointed out that every single state’s abortion laws permit termination of pregnancy when necessary to save the life of the mother. Treatment for ectopic pregnancies and other life-saving medical care for pregnant women are specifically exempted from all extant abortion laws.
The Biden administration has recently added more confusion to the debate in guidance on the federal Emergency Medical Treatment and Labor Act (EMTALA). EMTALA provides that hospitals receiving Medicare funds lose their funding if they deny treatment to patients experiencing medical emergencies. To comply with EMTALA, hospitals must “provide stabilizing treatment for patients” with “emergency medical conditions.” The Biden administration issued HHS guidance asserting that, under EMTALA, doctors must perform an abortion when it will provide stabilizing treatment for a pregnant woman. On the surface, this simply restates the obvious, and it does not conflict with any state abortion restriction.
Yet some were concerned that the EMTALA guidance was a move to gut medical conscience rights and coerce elective abortions. Texas sued, and two professional associations joined the lawsuit.
A few days later, DOJ sued the state of Idaho over its abortion trigger law, claiming that the law is preempted by EMTALA. Idaho’s law provides an affirmative defense for any abortion performed when the doctor believed “in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.” In other words, Idaho’s law—just like every other state’s—permits life-saving treatment.
So where’s the daylight between EMTALA and state pro-life laws? According to the Biden administration, Idaho’s “medical emergency” exception—even though it includes “serious risk of . . . impairment of a major bodily function”—isn’t broad enough. According to DOJ’s complaint, EMTALA mandates abortion when a mother suffers undefined “severe health risks.” That term is doing a lot of work in creating the daylight, and it may mean that the Biden administration intends to use EMTALA to force doctors to perform abortions even when the mother’s life is not remotely at risk, a move that would violate several federal conscience protection laws.
Of the numerous problems with DOJ’s suit and the EMTALA guidance itself, the most basic is that a Medicare funding condition can result in a loss of funding, but it cannot result in overriding the substance of state health-and-safety laws—even if they were in actual conflict. And from a practical perspective, the administration’s moves on EMTALA may scare women into thinking they aren’t already fully entitled to lifesaving treatment, while intimidating pro-life doctors into performing unnecessary abortions.
Similarly and perhaps even more obviously, having a miscarriage is not the same as having an abortion. Medical procedures to complete miscarriages, such as dilation and curettage, are techniques that abortionists also use; but the techniques aren’t prohibited under even the strongest pro-life laws. What’s prohibited is using the technique with the direct intention of ending an unborn child’s life. That, of course, is not the case in a miscarriage, where, tragically, the unborn baby has already died of natural causes.
EMTALA is about medical emergencies, and state laws like Idaho’s leave plenty of room for emergency treatment of pregnant women while also protecting their unborn children. Roe is gone, but federalism and the separation of powers in this area continue to be at risk as the executive branch now seeks to dictate abortion policy to the states.
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