Updated: Jul 21, 2022
In the wake of Roe v. Wade being overturned, the Biden administration is insisting that hospitals must still provide abortion services for mothers whose lives are at risk.
The president did this in two separate ways recently. First, Biden recently issued an executive order telling hospitals they "must" provide abortion services if the life of the mother is at risk.
A few days later, the Biden administration also insisted that current federal law already provides the same access to abortion in hospitals that his original executive order sought to protect.
Citing the Emergency Medical Treatment and Labor Act (EMTALA), the Department of Health and Human Services said in a guidance letter, "If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.”
The agency’s guidance letter also adds, "When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA's emergency medical condition definition — that state law is preempted."
This ambiguous language is a big problem.
What if a woman claims her pregnancy is hurting her mentally and she might do harm to herself? After all, an abortion might be “the stabilizing treatment necessary to resolve that condition.” What if bearing a child is traumatic for a woman? An abortion might be “the stabilizing treatment necessary to resolve that condition.” Who determines the abortion to be “necessary?”
Terminating women’s pregnancies in that scenario could be a narrow exception that pre-empts state laws that protect the unborn.
You won’t find much reporting on this much less deep analysis. On it’s surface, few have an objection to protecting mothers’ lives in any event. Even for many pro-lifers, protecting the life of a mother is an assumed consensus.
But HHS now says hospitals that accept Medicare must provide abortion services to women they have determined need it.
Under this system, a taxpayer funded hospital in Mississippi most perform abortions despite state laws.
Also, where does this leave Catholic hospitals? The language is so ambiguous that one would be forgiven if one interpreted these orders to mean that even Catholic hospitals would have to perform abortions. That’s an obvious non-starter.
It all sounds like a roundabout way to make abortion accessible despite what the Supreme Court and various state laws say.
State laws should matter. Supreme Court decisions should matter. The Constitution says they matter. Our nation’s governing charter should matter, too.
But Team Biden’s reaction to the Roe decision is to go above and beyond the proper authorities and executive order his way into protecting abortion.
To date and to my knowledge, Texas is the only state suing the Biden administration over this. Attorney General Ken Paxton said the Biden directive violates Texas’s “sovereign interest in the power to create and enforce a legal code.”
Paxton is right. Do the states get to make up their own rules or not?
Though they are the Lone Star state, it shouldn’t be Texas fighting this by their lonesome. Republicans need to defund this. They need to run on defunding it. They need to be out front and speaking against this administration subverting constitutional norms to their displeasure with the high court’s Roe decision.
When you ignore the Constitution—the rule of law, at the federal or state level—any authoritarian measures are possible.
The Biden order could easily become a path to federally funded abortion.
These executive orders need to be sent to the trash heap of history. The only question is: Will the new Republican House Majority have the will to do it?