Supreme Court Should Shut Down Joe Biden’s Attempt to Force ERs to Do Abortions

Tomorrow, (right now) the U.S. Supreme Court will hear oral arguments in Moyle v. United States and Idaho v. United States, two consolidated cases questioning whether the 1986 Emergency Medical Treatment and Labor Act (EMTALA) supersedes Idaho’s near-total abortion ban and can force physicians to perform abortions in emergency situations.

Idaho’s “Defense of Life Act” was enacted in 2020 and took effect when the Supreme Court overturned Roe v. Wade in June 2022. The law makes it a felony for doctors to perform an abortion unless it’s necessary to save the life of the mother. Soon after Roe’s overturning, the Biden administration sued the State of Idaho arguing EMTALA trumps the state’s abortion law and requires doctors to perform abortions under a broader set of exceptions than just to preserve the life of the mother. U.S. District Judge B. Lynn Winmill agreed and prevented Idaho from enforcing the law where it conflicted with EMTALA. A three-judge panel at the Ninth Circuit Court of Appeals briefly overturned that decision stating even if EMTALA does preempt Idaho’s law, its exemption for the life of the mother was sufficient to keep the laws out of conflict. However, the full Ninth Circuit Court of Appeals disagreed and quickly reversed that ruling forcing the State and Idaho Speaker of the House Mike Moyle to appeal to the U.S. Supreme Court.

In January 2024, the High Court agreed to hear the case and granted Idaho’s emergency request to enforce the ban in hospital emergency rooms while it decides the issue, which temporarily denies a Biden administration effort to force hospitals to perform abortions in the state.

Under EMTALA, Medicare-funded hospitals are required to provide necessary emergency care to pregnant women without discrimination, including if they cannot pay for the treatment. Even though the scope of EMTALA only deals with discrimination and does not even mention abortion, Secretary Xavier Becerra of the U.S. Department of Health and Human Services (HHS) has interpreted the law differently. He issued policy guidance in July 2022 to hospitals stating that EMTALA preempts state abortion laws and requires hospitals receiving Medicare funding to perform emergency abortions.

The guidance set forth an interpretation that state abortion laws with more narrow exceptions than EMTALA are “preempted,” and that physicians “must” perform an abortion if they feel abortion is “the stabilizing treatment necessary” to resolve an emergency medical condition. Under the guidance, hospitals could lose federal funding for failing to comply.

While the Biden administration argues that the HHS “guidance” is just clarifying existing federal law, the Idaho legislature and state officials called the disputed HHS guidance an “unauthorized power grab” and stated it would have been “odd” for Congress to negate “state abortion laws” in a provision that “does not even mention abortion.”

Now that SCOTUS has allowed Idaho’s protections for unborn babies to remain in effect for the time being, doctors who perform abortions are subject to penalties ranging from two to five years in jail, fines, and suspension or revocation of their medical licenses.

The outcome of this case will likely affect a nearly identical dispute in Texas. In January 2024, the Fifth Circuit Court of Appeals ruled the Biden administration cannot use EMTALA to override Texas’ near-total abortion ban and force Texas doctors to perform abortions. In Texas v. Becerra, a three-judge appeals court panel called the guidance “unlawful” and unanimously upheld a lower court ruling that struck down the guidance.

Authoring the ruling, Circuit Judge Kurt Engelhardt determined that EMTALA does not discard the unborn child during a life-threatening medical emergency, and he noted that the law requires hospitals to “stabilize both the pregnant woman and her unborn child.”

“The question before the Court is whether EMTALA, according to HHS’s Guidance, mandates physicians to provide abortions when that is the necessary stabilizing treatment for an emergency medical condition. It does not,” wrote Judge Engelhardt. “EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt [state] law.”

Dr. William Lile, who is board certified in Obstetrics and Gynecology and who has delivered thousands of babies, told Liberty Counsel that the goal in treating a pregnant woman is always to preserve the lives of both the mother and her unborn baby when possible.

Dr. Lile stated, “It’s the delivery of the baby that cures the mother’s condition, it’s not the stoppage of baby’s heart and the killing of the baby that helps the mother.”

Liberty Counsel Founder and Chairman Mat Staver said, “The Emergency Medical Treatment and Active Labor Act does not preempt state abortion laws, nor does it require the killing of an innocent life. Emergency rooms are only required to stabilize patients, which includes the unborn patient. This so-called ‘guidance’ by the Secretary of Health and Human Services is another lawless act of the Biden administration that will be struck down.”

The 2023 Florida Statutes (including Special Session C)

Title XXIX
PUBLIC HEALTH
Chapter 390
TERMINATION OF PREGNANCIES
390.0111 Termination of pregnancies.—
(1) TERMINATION AFTER GESTATIONAL AGE OF 15 WEEKS; WHEN ALLOWED.—A physician may not perform a termination of pregnancy if the physician determines the gestational age of the fetus is more than 15 weeks unless one of the following conditions is met:
(a) Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.
(b) The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman’s life or avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation.
(c) The fetus has not achieved viability under s. 390.01112 and two physicians certify in writing that, in reasonable medical judgment, the fetus has a fatal fetal abnormality
....
(1) TERMINATION AFTER GESTATIONAL AGE OF 6 WEEKS; WHEN ALLOWED.—A physician may not knowingly perform or induce a termination of pregnancy if the physician determines the gestational age of the fetus is more than 6 weeks unless one of the following conditions is met:

(a) Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.

(b) The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman’s life or avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation.

(c) The pregnancy has not progressed to the third trimester and two physicians certify in writing that, in reasonable medical judgment, the fetus has a fatal fetal abnormality.

(d) The pregnancy is the result of rape, incest, or human trafficking and the gestational age of the fetus is not more than 15 weeks as determined by the physician. At the time the woman schedules or arrives for her appointment to obtain the abortion, she must provide a copy of a restraining order, police report, medical record, or other court order or documentation providing evidence that she is obtaining the termination of pregnancy because she is a victim of rape, incest, or human trafficking. If the woman is 18 years of age or older, the physician must report any known or suspected human trafficking to a local law enforcement agency. If the woman is a minor, the physician must report the incident of rape, incest, or human trafficking to the central abuse hotline as required by s. 39.201.

(2) IN-PERSON PERFORMANCE BY PHYSICIAN REQUIRED.—Only a physician may perform or induce a termination of pregnancy. A physician may not use telehealth as defined in s. 456.47 to perform an abortion, including, but not limited to, medical abortions. Any medications intended for use in a medical abortion must be dispensed in person by a physician and may not be dispensed through the United States Postal Service or by any other courier or shipping service.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0390/Sections/0390.0111.html

Thank you for posting that.

I have seen a number of stories about women who allegedly have been unable to receive care in FL or TX when they were having miscarriages or stillbirths. This law seems to make it clear that a pregnant woman with pregnancy complications absolutely does get appropriate treatment under the law. After all, if a fetus dies and the miscarriage fails to occur on its own, removal of the fetus (which is not technically abortion since it's already dead) is medically necessary for the mother's health.

I would like to see provision (c) expanded. There are abnormalities that are not immediately fatal, but result in an absolute lack of quality of life, such as severe growth restriction along with lack of any cerebral/intellectual development, etc. I'm not comfortable with telling a woman whose child has been diagnosed with such a condition that abortion is not an option (although I would want her to be completely aware of the nature of abortion so she can make an informed choice). And what about children with Tay-Sachs disease? The baby is apparently normal at birth, but intellectual development stalls and regresses after a year or so and the child dies before the age of 6 or so. No matter what the mother chooses, the decision is difficult.

And maybe the law should be expanded to include a requirement for fetal anesthesia in the cases the law does allow abortion.

What kind of mother would not give up her life for her child????

I have known two women who have had ectopic pregnancy. An ectopic pregnancy is immediately life-threatening to the mother and must be removed. One of these women was as pro-life as one can be, but ended up having two ectopic pregnancies. That eliminated her ability to ever have a child of her own, so she elected to have a hysterectomy and adopt instead. The other woman went on to miscarry triplets (two boys and a girl, she told me) then successfully carried a son, her only living child, to term.

In the case of ectopic pregnancy, there is no possibility of saving the baby. The only option is to remove it and no 2 month old or less fetus is capable of living outside the womb.

Yes, abortion to save the mother's life is sometimes necessary, but only early in pregnancy. Past the point of fetal viability outside the womb, there is no reason to abort.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.