The Biden administration will stop at nothing to push abortion on the country, but a federal court put a stop Tuesday to another of its illegal schemes.
The Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization returned regulation of abortion to where it belonged all along, to “the people and their elected representatives.”
But that is too risky for the abortion warriors in the Biden administration. Those warriors are constantly looking for some statutory ambiguity to exploit, some legal hair to split, some regulatory spaghetti to throw at the wall to keep abortions happening.
President Joe Biden’s latest abortion scheme is to turn a law that requires hospital emergency rooms to treat patients into what is a federal abortion mandate.
The law, called the Emergency Medical Treatment and Active Labor Act or EMTALA, was enacted in 1986 to combat “patient dumping” in which hospitals refuse to treat, or unnecessarily transfer, indigent patients.
EMTALA covers emergency rooms in hospitals that participate in the Medicaid program. It requires the screening of patients, regardless of their ability to pay, to determine whether a patient has an “emergency medical condition.” If she does, she must be offered either “stabilizing treatment” or transfer to another medical facility.
Two weeks after the Supreme Court’s Dobbs ruling, the Centers for Medicare and Medicaid Services, part of the U.S. Department of Health and Human Services, issued “guidance” about enforcing the Emergency Medical Treatment and Active Labor Act in pro-life states.
If a physician believes that “abortion is the stabilizing treatment necessary to resolve” an emergency medical condition, the agency said, “the physician must provide that treatment.” In that situation, a state pro-life law “is preempted.”
In other words, according to federal guidance, EMTALA mandates whatever a physician decides is necessary to stabilize whatever medical condition he observes, regardless of what state law may say.
The state of Texas and two pro-life medical associations challenged this guidance, arguing that it amounts to a substantive policy change that EMTALA does not support and, in any event, requires a formal rulemaking process rather than a mere guidance letter. The U.S. District Court, and now the U.S. Court of Appeals for the 5th Circuit, agreed.
The 5th Circuit’s unanimous opinion Tuesday in Texas v. Becerra was written by Judge Kurt Engelhardt, a Trump appointee. The appeals court made three important observations about the Emergency Medical Treatment and Active Labor Act.
First, the law “does not mandate any specific type of medical treatment, let alone abortion.”
Second, the law does not clearly supersede the states’ historic power to regulate both the medical profession and abortion. In fact, a provision specifies that it preempts state or local law only when those measures “directly” conflict.
“In sum,” Engelhardt wrote, “EMTALA does not govern the practice of medicine. … While EMTALA directs physicians to stabilize patients once an emergency medical condition has been diagnosed … the practice of medicine is to be governed by the states.”
Third, under the Emergency Medical Treatment and Active Labor Act, emergency medical conditions include those that place “the health of the woman or her unborn child … in serious jeopardy.” The 5thCircuit said that this approach “imposes equal stabilization obligations.”
EMALA’s text, the court concluded, “speaks for itself” and “requires hospitals to stabilize both the pregnant woman and her unborn child.” It does not establish an “unqualified right for the pregnant mother to abort her child.”
Not only did the Biden administration attempt, as the 5th Circuit put it, to “expand the scope of EMTALA” through an executive branch agency rather than Congress, but it did so in the wrong way. The Medicare Act requires a formal rulemaking process for rules or statements of policy that establish “a substantive legal standard.”
That formal process requires public notice and an opportunity for public comment; in other words, it is open and transparent. Using a “guidance” letter, like the one from the Centers for Medicare and Medicaid Services, instead shuts out the public and minimizes any scrutiny.
The Biden administration has tried to push its abortion agenda through every avenue from AIDS relief programs to the Department of Veterans Affairs.
Nor is it the first time the administration has tried to turn a federal statute into something else to facilitate abortion. The Comstock Act, for example, prohibits using the U.S. Postal Service to send any “article or thing designed, adapted, or intended for producing abortion.”
Biden’s Justice Department issued an opinion claiming that the Comstock Act simply doesn’t mean what it plainly says, offering a different version that would be virtually unenforceable. Its arguments are untenable on their face, but demonstrate how far the Biden administration is willing to go to promote abortion.
The 5th Circuit decision in this case, like the District Court’s, is limited to the state of Texas. But this scheme of using the Emergency Medical Treatment and Active Labor Act to promote abortion is being implemented elsewhere, so we can expect more challenges and rulings on this important issue.
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