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Biden Admin’s New HHS Guidance Shoehorns Unfettered Abortion Into Existing Law

The Biden administration’s sleight-of-hand is telling to those well-versed in the rhetoric of abortion apologists.

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The Biden administration’s “new guidance” to hospitals declaring that abortions must be provided in emergencies seeks not to clarify the law but to provide pro-abortion forces a way to skirt state law while pushing several lies to further the false narrative that overturning Roe v. Wade endangers women’s lives.

In a Monday press release, the U.S. Department of Health and Human Services announced that through its Centers for Medicare and Medicaid Services (CMS), it had issued what it called “clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA)” on “abortion services in emergency situations.” 

Congress passed the EMTALA in 1986 “to ensure public access to emergency services regardless of ability to pay,” by imposing “specific obligations on Medicare-participating hospitals that offer emergency services.” Specifically, under the EMTALA, a medical facility that runs an emergency room — which is not all health care facilities — must “provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual’s ability to pay.” The law then requires hospitals “to provide stabilizing treatment for patients with EMCs,” with a hospital that “is unable to stabilize a patient within its capability” arranging a transfer to another facility. 

The press release issued on Monday announced that HHS Secretary Xavier Becerra had written to health care providers in conjunction with the CMA’s issuances of a new memorandum purporting to explain the mandates of EMTALA “in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

After providing a quick summary of the EMTALA, the CMA memorandum noted that “an emergency medical condition may include a condition that is likely or certain to become emergent without stabilizing treatment” and that “emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.” 

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the memorandum continued. The memorandum then concluded: “When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

While federal law clearly “preempts” or overrides conflicting state laws because of the Supremacy Clause of the Constitution, the CMS memorandum proves problematic for several reasons. But before dissecting the many problems with the memorandum, it is important to highlight the deceptive bait-and-switch Becerra effected in purporting to summarize the memorandum and the EMTALA’s mandates in the letter he dispatched to health care professionals on Monday. 

“Stabilizing treatment could include medical and/or surgical interventions (e.g., abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy etc.), irrespective of any state laws or mandates that apply to specific procedures,” Becerra wrote.

He continued: “Thus, if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.” Significantly, Becerra then declared that “when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted” (Emphasis added). 

As the above excerpt shows, Becerra added the word “health” to the language of the CMS memorandum, which speaks instead to “exceptions for the life of the pregnant [woman].” And that sleight-of-hand is telling to those well-versed in the rhetoric of abortion apologists and their ability to squeeze an elephant into the “health” mouse hole, with “physical, emotional, psychological, familial and the woman’s age,” all framed as “relevant factors” to assess the effects of pregnancy on a woman’s “health,” leaving “health” to mean anything. 

Donna Harrison, an OB/GYN and the CEO for the Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), told The Federalist, “The AAPLOG is concerned that by using the ambiguous word ‘health’ that the Biden administration is trying to use EMTALA to force the performance of abortions in situations which are not medical emergencies.”

“We will be closely monitoring the interpretation of this guidance document,” Harrison added.

Beyond the apparent attempt by Becerra to expand the preemptive force of the EMTALA to situations in which it does not apply, the memorandum itself pushes several fallacies being peddled by abortion apologists since the Dobbs decision dropped, such as that with Roe overturned, women will no longer receive life-saving health care in the case of an ectopic pregnancy or miscarriage. The CMS memorandum and Becerra’s letter reinforce these false narratives by, in purporting to address the EMTALA’s requirements in light of state abortion laws, including a discussion of the treatment of “ectopic pregnancy” and “complications of pregnancy loss.”

But the medical treatment of ectopic pregnancies and miscarriages are not abortions. Elizabeth Kirk, the director of the Center for Law & the Human Person at the Columbus School of Law at the Catholic University of America, and Dr. Ingrid Skop, an obstetrician-gynecologist and director of medical affairs at the Charlotte Lozier Institute, corrected those misconceptions in an article for SCOTUSblog’s symposium on Dobbs, “Why the Dobbs Decision Won’t Imperil Pregnancy-Related Medical Care.”

Medical treatment of a pregnant mother and her child seeks to protect the life and health of both patients, where possible,” they explained. “In contrast, the purpose of abortion is to cause the death of one of the patients, namely the unborn child. An abortion procedure is not the same thing as treatment for an ectopic pregnancy or miscarriage management, which even Planned Parenthood admits.” With an ectopic pregnancy, which is a pregnancy outside of the uterus, the medical “indication and interventions … versus elective abortion are vastly different.” In fact, “mifepristone and misoprostol, used commonly to provide medical abortions, specifically do not treat a pregnancy outside of the uterus, and deaths have occurred in women seeking abortion when this condition has not been first ruled out.” 

Further, while the treatments for miscarriage or pregnancy loss, may sometimes “be the same as those for abortion (e.g., dilation and suction or misoprostol or, uncommonly, a combination of mifepristone/misoprostol), the purpose is vastly different, i.e., removing an already dead fetus versus causing the death of a fetus.” 

Likewise, the treatment of “preeclampsia with severe features,” another example the HHS’s supposed guidance suggests would justify an abortion, ignores the distinction between the treatment of the mother’s medical condition and a procedure aimed at intentionally causing the death of the fetus. And because “the incidence of pre-eclampsia with severe features … prior to viability is exceedingly rare,” treating the mother’s emergency medical condition will often allow physicians to save the child. 

Similarly, abortion is not medically necessary to treat placenta previa, which “is a condition in which the placenta covers the cervix, making a vaginal delivery impossible due to the possibility of life-threatening hemorrhage if labor occurs.” As AAPLOG has detailed, placenta previa “are frequently diagnosed in pregnancy on ultrasound around 20 weeks, however approximately 90% of these will resolve on their own before delivery.”

But “if significant hemorrhage occurs due to a placenta previa (which again is so rare prior to viability that no incidence is even reported), the patient should be taken for an emergency C-section which is the most expedient way to get her bleeding under control.” In fact, “it would be medically dangerous and irresponsible to try to do an abortion since any instrumentation through the cervix would pierce the placenta and cause immediate massive bleeding.” Further, “an abortion would take significantly longer in this case and be much risker for the mother.”

Given these medical facts and the legal reality that states that prohibit abortion clearly define it as procedures that intentionally cause the death of an unborn child, and therefore treating ectopic pregnancies and miscarriages are not abortions, the laws already make clear that an abortion ban is not a ban on providing life-saving medical treatment to pregnant women even if it results in the death of a fetus. 

Health care providers know this, and Becerra and the CMS know that they know this, but the letter and memorandum serve other goals of the pro-abortion Biden administration, including: providing abortion-oriented medical facilities with a basis to skirt state law by framing an elective abortion as mandated by EMTALA; pushing misinformation to the public concerning the treatment of ectopic pregnancies and miscarriages; misrepresenting the medical need for an abortion to preserve the life of the mother; misrepresenting state abortion laws to create the false impression that abortion bans prohibit doctors from treating women’s emergency medical conditions; and creating a political talking point that Dobbs puts women’s lives at risk based on the strawman crafted by the administration.

But at the end of the day, the strawman constructed by HHS easily collapses when one remembers that the goal of an abortion is a dead baby, while the goal of treating a pregnant woman with a serious health condition is to save the mother and, if possible, deliver her baby alive.