The U.S. Department of Health and Human Services (HHS) issued guidance letters on access to emergency abortions and abortion drugs to health care providers and pharmacists nationwide.
HHS Secretary Xavier Becerra wrote to hospitals, advising them the Emergency Medical Treatment and Active Labor Act (EMTALA) preempts state laws that conflict with it and requires providers to provide emergency treatment, on July 11.
“Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features,” wrote Becerra. “Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the EMTALA statute.”
The HHS Office for Civil Rights (OCR) issued guidance telling pharmacies they are obligated under federal law to fill orders for abortifacient drugs and contraceptives, on July 13.
Doing otherwise would constitute discrimination against “women and pregnant people,” states the OCR guidance.
“Under federal civil rights law, pregnancy discrimination includes discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth,” states the OCR.
Both documents warn that hospitals and pharmacies violating HHS’s interpretation of federal law could lose eligibility for Medicare and Medicaid reimbursement.
‘Pharmacists Are Not Vending Machines’
Invoking EMTALA in response to the Dobbs decision is deliberately misleading, says Rachel N. Morrison, J.D., who focuses on HHS policy at the Ethics and Public Policy Center (EPPC).
“No state abortion law prohibits medical professionals from treating miscarriage, ectopic pregnancy, or other life-threatening situations a pregnant woman may face,” said Morrison. “The suggestion by the Biden administration to the contrary in its EMTALA guidance is misinformation and dangerous to women who wrongly believe they cannot receive necessary medical care.”
On the contrary, EMTALA aims to ensure that women and their babies receive needed emergency care, says Morrison.
“EMTALA is a pro-life statute, and its text explicitly recognizes the life and health of a pregnant mother and her unborn child,” said Morrison. “HHS’s EMTALA guidance is a thinly veiled attempt to coerce doctors to perform abortions contrary to their consciences.”
Furthermore, it encouraged physicians to violate state laws, says Morrison.
“[The guidance intends to] give cover to pro-abortion doctors to perform abortions in states that protect life when EMTALA requires no such thing,” said Morrison.
The HHS guidance to pharmacists is unethical, says Morrison.
“Pharmacists are not vending machines, they are medical professionals that exercise autonomous medical judgment and expertise on over 20,000 FDA-approved drugs,” said Morrison. “Just like no doctor should be forced to perform an abortion, no pharmacist should be forced to provide drugs to intentionally end a child’s life in the womb—nondiscrimination laws notwithstanding.”
Texas’ Legal Challenge
The Biden administration has sought to uphold abortion access at the federal level, creating a Reproductive Rights Task Force to find a way to codify abortion rights into federal law, after the U.S. Supreme Court’s Dobbs v. Jackson opinion overturned Roe v. Wade and returned jurisdiction over abortion to the states, on June 29.
Texas Attorney General Ken Paxton filed a lawsuit challenging Becerra’s guidance in federal district court.
“The Biden Administration’s response to Dobbs v. Jackson Women’s Health … is [an] attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic,” states Paxton’s complaint. “President Biden is flagrantly disregarding the legislative and democratic process—and flouting the Supreme Court’s ruling before the ink is dry—by having his appointed bureaucrats mandate that hospitals and emergency medicine physicians must perform abortions. But Defendants’ Abortion Mandate forces hospitals and doctors to commit crimes and risk their licensure under Texas law.”
‘Bolster State Autonomy’
Texas should be commended for resisting improper federal interference with state abortion laws, says Andy Schlafly, general counsel to the Association of American Physicians and Surgeons.
“The Biden Administration should not be attempting to dictate to states, such as Texas, what should be done concerning abortion within their states,” Schlafly told Health Care News. “I expect Texas to prevail, and that should help bolster state autonomy nationwide to protect religious liberty and the unborn.”
State governments are the proper domain for abortion law, from both legal and democratic perspectives, says Schlafly.
“The state level is far better,” said Schlafly. “There is more political accountability there, and less influence by a handful of elites in the liberal media and a few law schools.”
Dobbs is a win for the U.S. Constitution and representative government, says Morrison.
“The Supreme Court corrected its deadly error in Roe and rightly recognized that the Constitution does not contain any right to abortion,” Morrison said. “There is no federal compelling government interest in abortion. The Court sent the issue back to the people’s elected representatives, which will allow laws that reflect the values in the community.”
Harry Painter (email@example.com) writes from Oklahoma.
Xavier Becerra, Secretary of Health and Human Services, Letter to Health Care Providers, July 11, 2022: https://www.hhs.gov/sites/default/files/emergency-medical-care-letter-to-health-care-providers.pdf
Office for Civil Rights, U.S. Department of Health and Human Services, “Guidance to Nation’s Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services,” updated: https://www.hhs.gov/civil-rights/for-individuals/special-topics/reproductive-healthcare/pharmacies-guidance/index.html