After the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, politicians, states, and companies have been grinding to find measures to continue abortion practices.
In a struggle between conservative states and liberal companies, lawsuits are popping up all over the United States over the legitimacy of the Supreme Court’s decision.
The Biden Administration has gone further, implementing a memorandum that requires hospitals who use Medicaid to give abortions in cases of emergencies to save the life of the mother, or if there will be severe harm. The Administration is using the Emergency Medical Treatment and Active Labor Act (EMTALA), which prevents hospitals from turning away patients who cannot pay.
Hospitals, under this law, have to take care of patients who come in for legitimate reasons. If a patient comes in with an emergency medical condition, hospitals cannot turn them away.
The Biden Administration is using this law to require hospitals give abortion if the emergency requires it. “If qualified medical personnel determine that the patient’s condition, such as an ectopic pregnancy, requires stabilizing treatment to prevent serious jeopardy to the patient’s health, the qualified medical personnel is required by EMTALA to provide the treatment.”
The Department of Health and Human Services is stating that this memorandum protects hospitals from state law if the emergency situation requires terminating a woman’s pregnancy. If the situation requires it, the hospitals under this memorandum can give an abortion.
Hospitals that are federally funded with Medicaid and Medicare are at risk of losing funding if they do not follow this new policy.
In response, the State of Texas, led by Texas Attorney General Ken Paxton, is suing the Department of Health and Human Services. “By requiring Medicare-participating hospitals, including hospitals operated by the State of Texas, to provide abortions when the life of the mother is not in danger, the Abortion Mandate directly infringes on Texas’s sovereign and quasi-sovereign authority,” said the State of Texas in complaint.
Right now in Texas the law is that abortions are illegal except in cases where it legitimately threatens the life of the mother.
The State of Texas is arguing that the memorandum given by the Biden Administration is an abuse of Executive power that is trying to push abortion through bureaucracy. The memorandum, Texas argues, pressures hospitals in risking losing their Medicare/Medicaid funding to give abortions.
Finally the State of Texas believes that the memorandum violates states rights in the 10th Amendment. Since abortion is not longer recognized as a constitutional right, and it is up for the states to decide, Texas claims that the Biden Administration is violating the legislative process.
Provided in the State of Texas official complaint against HHS, it states that: “EMTALA defines “emergency medical condition” to include “a medical condition manifesting itself by acute symptoms of sufficient severity, such that the absence of immediate medical attention could reasonably be expected to result in–(i) placing the health of the individual in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily function or part.” 42 U.S.C. § 1395dd (e)(1)(A). 20. “To stabilize” means “to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.” 42 U.S.C. § 1395dd(e)(3).”
The State of Texas argues the Social Security Act has a provision for the EMTALA that this above sub-chapter cannot be construed and does not target specific treatments. Their argument is that abortion is not protected in this provision, and that the law is protected from federal oversight on the treatment given by doctors.
Reading the memorandum, the Biden Administration tries to imply that emergency treatment and screening required in the EMALA does mean abortion treatment. The Administration has done the same thing for federally funded pharmacies to keep filling prescriptions for “reproductive healthcare.”
A battle between President Biden’s bureaucracy and the nation’s conservative states play out on the abortion topic. If this case is decided in district court, or continues to rise upward in the federal court process, it might set what the role of the Executive branch is, in what is now constitutionally set as a state matter.
[Story by Jacob Lehrer]