Biden ramps up administration’s efforts to increase abortion “access,” Part Two

By Dave Andrusko

EMTALA is a federal law that requires hospitals which receive Medicare funds to stabilize and care for any patient who needs emergency treatment, regardless of a patient’s ability to pay. Its purpose is not to smuggle in abortion, but that is exactly what the Biden Administration is intent on doing. First, some background.

As we discussed on Wednesday, Attorney General Merrick Garland has filed a lawsuit against Idaho’s protective abortion law which allows abortion when “necessary to prevent the death of the pregnant woman” as determined by a physician “‘in his good faith medical judgment and based on the facts known to the physician at the time,’” as Dan McLaughlin of National Review has explained.

It “further allows a defense when a doctor performed a procedure that ‘provided the best opportunity for the unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman,’ McLaughlin continues. ”In short, it treats the mother and child as having an equal right to life, but permits abortion when the mother’s own life is threatened (even if her death is not certain, and the child’s is) and, even then, requires that best efforts be made to ensure the child’s chances of survival.”

The Justice Department is suing under EMTALA, arguing that the “Idaho law bans abortions in situations where the denial of an abortion would violate the federal Emergency Medical Treatment and Labor Act,” according to McLaughlin.

On Wednesday, Texas Attorney General Ken Paxton filed a motion to enjoin the Biden Administration from using EMTALA to require Texas hospitals and doctors to perform abortions as a condition of receiving Medicare and Medicaid funding.

A press release from the Attorney General’s office reads

This Biden Administration’s Abortion Mandate has the effect of requiring doctors and hospitals to choose between performing abortions in violation of State law or caring for women as they always have while incurring fines and the loss of federal funding.

Texas law has long permitted doctors to perform abortions when the life of the mother is at risk. That is still the law. EMTALA does not empower the federal government to change that. EMTALA requires hospitals to treat patients the same regardless of their ability to pay; it does not authorize the federal government to commandeer the practice of medicine.

“While the Biden Administration continues to make up rules that are unconstitutional, I will keep holding them accountable,” said Attorney General Paxton. “I will not allow the Biden Administration to threaten doctors and hospitals with this unlawful mandate and put millions of Texans’ access to healthcare on the line.”

The Attorney General’s brief asks for a preliminary injunction.

He writes

As set forth more fully in the brief filed in support of this motion, injunctive relief is warranted because Plaintiffs are likely to prevail on their claims that the Abortion Mandate is unlawful. Defendants lacked statutory authority to adopt it, failed to follow required procedures for adopting a rule, acted arbitrarily and capriciously, and made other legal errors. Moreover, the Abortion Mandate will cause irreparable harm by requiring doctors and hospitals to either violate State law and risk their medical licenses or comply with State law and risk enormous penalties and loss of federal funding.

“Defenders of legal abortion have grown accustomed to winning in court just on the basis of precedent and sympathetic judges,” McLaughlin writes. “When forced to argue on the facts and judged on the same legal standards as any other litigant, they do not fare so well.”

Stay tuned. The Biden Administration is determined to circumvent the June 24th Supreme Court Dobbs decision overturning Roe v. Wade as well as democratically approved state pro-life law. We are equally determined to stop them in their tracks.