Treating pregnant women’s “emergency medical conditions” never requires ER doctors to perform illegal abortions. The Biden administration’s claims to the contrary represent a dishonest attempt to reinject federal courts into state abortion policy following the Supreme Court’s reversal of Roe v. Wade and Planned Parenthood v. Casey.
Less than a week after pro-life medical associations sued the Biden administration in a federal court in Texas over its attempt to use the Emergency Medical Treatment and Labor Act (EMTALA) to force emergency room doctors to perform abortions in violation of state law, Biden’s Department of Justice filed suit against Idaho claiming that state’s abortion ban violates the EMTALA.
The EMTALA, which Congress passed in 1986, bans “patient dumping,” wherein hospital emergency rooms turn patients away because of an inability to pay. Under the EMTALA, hospitals that receive Medicare funding and operate emergency rooms must “provide a medical screening examination” “regardless of an individual’s ability to pay.” The law then requires hospitals “to provide stabilizing treatment for patients” with an “emergency medical condition.”
In mid-July, Department of Health and Human Services Secretary Xavier Becerra issued a statement announcing that the Centers for Medicare and Medicaid Services (CMS) had issued a new memorandum to Medicare service providers purporting to explain the mandates of EMTALA “in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.”
In its supposed explanatory memorandum, the CMS claimed that an abortion may be the “stabilizing treatment” required under the EMTALA when a pregnant woman presents at an emergency department with a potential “emergency medical condition,” such as an “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.” The Biden administration then advised that if “a state law prohibits abortion and does not include an exception for the life of the pregnant [woman] — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” meaning trumped by federal law.
Two days after the release of Becerra’s statement and the CMS memorandum, Texas sued the Biden administration in a federal court, challenging the memorandum on numerous grounds, including that it exceeded the CMS’s authority and violated the Spending Clause of the Constitution and the 10th Amendment. Last Thursday, Texas filed an amendment complaint that added as plaintiffs the American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG) and the Christian Medical & Dental Associations. The amendment complaint alleges similar legal theories but added several significant allegations.
For instance, the amendment complaint highlights portions of the CMS memorandum that suggest ER physicians will violate the EMTALA if they fail to provide a surgical abortion in response to women presenting with an incomplete medical abortion, even in cases “where the unborn child is still living and may still be preserved.” The CMS’s guidance under this scenario would, in effect, require ER doctors to provide illegal elective abortions, the amended complaint alleges. Further, as stressed in the amended complaint, the “AAPLOG has issued several position statements and medical practice bulletins on situations threatening the life of the mother and the need to not conflate legitimate treatments provided in such circumstances with abortion provided in broader circumstances.”
While the amended complaint filed in Texas does not detail those circumstances, shortly after the CMS issued its memorandum, The Federalist excerpted from those position statements, medical practice bulletins, and other pro-life obstetrician and gynecologist resources, explaining that “medical treatment of a pregnant mother and her child seeks to protect the life and health of both patients, where possible,” while “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,” the guidance makes clear, with the treatment for “an ectopic pregnancy, which is a pregnancy outside of the uterus,” being vastly different than an elective abortion.
Moreover, “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, treating “preeclampsia with severe features,” another example provided to justify an abortion, rarely occurs prior to viability, allowing the ER physician to treat the mother’s emergency medical condition while attempting to also save the unborn baby’s life.
Abortion is also 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 notes, placenta previa is “frequently diagnosed in pregnancy on ultrasound around 20 weeks,” but approximately 90% of these will resolve on their own before delivery.” Further, “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.”
Notwithstanding these medical facts, the Biden administration posits in its guidance that abortions are needed to stabilize patients — but with no evidence that any pregnant woman has been, or would be, denied stabilizing treatment and with no evidence that an abortion would be the only way to stabilize the patient. Further, in arguing an abortion may be required “stabilizing treatment,” the Biden administration ignores that the EMTALA requires the stabilization of the second “patient,” which is defined by the statute to include the “unborn child.” In fact, the EMTALA stressed “the need to protect the ‘unborn child’ four times” within the statutory text.
The EMTALA’s mandate that ER physicians attempt to stabilize unborn babies means that the health care provider cannot disregard the unborn baby’s life in providing emergency medical treatment. And, as the amended complaint stressed, “it is obvious that abortion does not stabilize the unborn child from serious jeopardy faced by an emergency medical condition, nor does it preserve the life or health of an unborn child.”
While the DOJ has not yet answered Texas’s amended complaint, on Tuesday the Biden administration filed suit in an Idaho federal court arguing that Idaho’s abortion ban violates the EMTALA.
Idaho bans “abortion,” which is defined by statute to mean intentionally terminating a “clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.” A physician who performs an abortion may avoid liability, however, if “[t]he physician determined, 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.” Idaho also provides an exception for doctors who perform abortions on victims of rape or incest.
In its lawsuit against Idaho, the Biden administration alleges that under the state’s law, it is illegal for doctors to perform an abortion to “stabilize” women facing a medical emergency. Thus, the DOJ’s complaint maintains that Idaho’s abortion ban violates the EMTALA.
It will be some time before the federal courts rule on the Texas and Idaho cases, although the DOJ will likely seek a preliminary injunction in Idaho, hoping to put an immediate halt on that state’s abortion ban to the extent it applies in emergency rooms. But in deciding whether to grant the Biden administration a preliminary injunction, and then later in ruling on whether the EMTALA overrides state abortion law, the courts will need to first sort through the rhetoric and reach the reality of when an abortion may or may not be required to “stabilize” a pregnant woman.
And contrary to the Biden administration’s narrative, the answer to that question is “never,” because treating pregnancy loss and ectopic pregnancies are not abortions, and treating other “emergency medical conditions” can be done while also attempting to stabilize the unborn baby — something required under the EMTALA.
For those few sad circumstances where both patients cannot be stabilized, there is also no conflict because it is also not an abortion to treat the mother, even if the unborn baby does not survive. Rather, an abortion is the intentional killing of an unborn child. But the Biden administration already knows that.