Biden Admin Silently Erases ‘Unborn Child’ In Legal Argument Pushing Abortion On Religious Medical Workers

The Emergency Medical Treatment and Active Labor Act (EMTALA) has taken center stage in the Biden administration’s push to force health care providers to perform abortions. Faith-based organizations have been forced to take action to protect their sincerely held religious beliefs, including the belief that human life begins at the moment of fertilization, from being violated by requirements that health care providers perform abortions.

Shortly after the Dobbs v. Jackson Woman’s Health Organization opinion was released, President Joe Biden signed an executive order directing the Department of Health and Human Services (HHS) to find ways to make abortion accessible despite the Supreme Court ruling. The order instructed HHS to rely upon EMTALA to ensure that abortion as a treatment option is available in emergency medical situations.

HHS then published a memorandum providing guidance on the obligations of health care professionals under EMTALA to patients who are pregnant, and HHS Secretary Xavier Becerra sent a letter to health care professionals stating that “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 the EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide the treatment.” This guidance effectively requires any physician, regardless of personal beliefs and conscience considerations, to perform an intentional abortion.

As part of its response, the Catholic Medical Association on Sept. 14 showed its support for a resolution proposed by members of the American College of Emergency Physicians (ACEP) that would ensure ACEP would “not establish policies or assert an ethical standard of care regarding management of patients seeking elective abortions in the Emergency Department.”

EMTALA Created to Protect Children Too

Contrary to HHS’s position, EMTALA was created to ensure that not only a pregnant woman’s health is protected in an emergency situation, but also the health of the unborn child. Enacted in 1986, EMTALA addressed “patient dumping,” a term to describe a situation where a patient who is uninsured or unable to pay is prematurely discharged or sent to another facility before being evaluated and stabilized. Pregnant women in labor were specifically contemplated in this law, as women without insurance who presented to a hospital in labor were being inappropriately denied care or transferred to another facility leading, in certain circumstances, to injury or death of the mother or unborn child.

The purpose of EMTALA was to protect both the mother and the unborn child, and the unambiguous language of the statute requires health care professionals to take into consideration the life and health of the unborn child. EMTALA defines “emergency medical condition” as “a medical condition manifesting itself by acute symptoms of sufficient severity (including pain) such that the absence of immediate medical attention could reasonably be expected to result in — (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy … (B) with respect to a pregnant woman who is having contractions — (i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or (ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.”

By this very definition, the intentional ending of unborn life through abortion is not permitted, and HHS’s promotion of abortion under EMTALA is misleading.  

EMTALA places value on both the mother and the unborn child by stating the “health of the individual” applies equally to the “health of the woman or her unborn child.” Yet HHS’s guidance memorandum completely removes any mention of “unborn child” in its summary of what an emergency medical condition is. The only way that the administration and HHS can make an EMTALA argument is to completely disregard the fact that EMTALA creates responsibilities and duties to the unborn child. This is a fact that they are attempting to ignore, and they are willing to sacrifice the conscience rights of thousands of health care professionals nationally in the process.

Contrasting Idaho and Texas Lawsuits

In early August, the administration filed suit against the state of Idaho for a law criminalizing abortion that went into effect after the Dobbs opinion was released by the Supreme Court in June. On Aug. 24, Judge B. Lynn Winmill ruled against Idaho and held that EMTALA preempts Idaho’s state law. Therefore, Idaho’s law could not be enforced when there is an “emergency medical condition” present as set forth under EMTALA.

On Sept. 8, the Idaho legislature sent a brief to Judge Winmill asking him to reconsider his opinion, arguing EMTALA protects both the mother and the unborn child, and specifically stating, “Congress drew its line to protect both the mother and the unborn child in an emergency medical situation. By contrast, the Administration draws its line to eliminate all protection for the unborn child in such situations. It did so by a simple expedient — it silently erased ‘or her unborn child’ from all DOJ filings.”

Just prior to the Idaho lawsuit, the state of Texas, along with the American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical and Dental Associations, filed suit against HHS over the EMTALA abortion mandate. On Aug. 23, Judge James W. Hendrix held in favor of the health care providers and granted a preliminary injunction ruling that HHS could not enforce the requirement of abortions under EMTALA in Texas.

Interestingly, Judge Hendrix’s opinion devoted significant analysis to the statutory language of EMTALA, focusing on the fact that the statute specifically calls for the protection of both the pregnant woman and the unborn child. This was quite the opposite in Judge Winmill’s opinion, where there was no mention or analysis of the duties to the unborn child under EMTALA, much like the failure to even mention the responsibilities to the unborn child by HHS when providing the EMTALA guidance. Judge Winmill stated “[I]n sum, cutting back on emergency abortion care quantitatively and qualitatively is a plain obstacle to EMTALA, which Congress enacted to ensure that all individuals — including pregnant women — have access to a minimum level of emergency care.”

Apparently “all individuals” does not include the unborn child. Thankfully, faith-based organizations and health care providers who are at risk of being forced to violate their conscience rights are calling out the administration and bringing to light what amounts to nothing more than a political ploy to use EMTALA in an unconstitutional manner to terminate the life of an unborn child that EMTALA was unambiguously created to protect.

Joshua McCaig is the founding president of the Catholic Bar Association and a board member of the Catholic Health Care Leadership Alliance.

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