Pro-Life Law Firm Urges Federal Appeals Court to Uphold Right of Unborn Children to Emergency Medical Care

A leading national pro-life law firm has filed an amicus brief with the Fifth Circuit Court of Appeals, arguing the Biden administration’s “guidance” to hospitals that “reminds” them of their “obligation” to provide abortions in states where the procedure is illegal is an incorrect interpretation of the Emergency Medical Treatment and Labor Act (EMTALA).

In a press statement Friday, Life Legal explained that after the U.S. Supreme Court overturned Roe v. Wade in June 2022, “Democrats were determined to find ways to prevent pro-life states from protecting babies in the womb.”

Just two weeks after the Court’s decision in Dobbs, Joe Biden issued an executive order to protect abortion rights, followed by the U.S. Department of Health and Human Services’ (HHS) guidance to clarify to hospitals that “emergency medical care includes abortion services.”

In a letter to providers, Biden HHS Secretary Xavier Becerra asserted that EMTALA preempts state laws that restrict access to abortion in emergency situations.

HHS put forward in the press release its interpretation of what is required of hospitals regarding EMTALA and abortion services:

The EMTALA statute requires that Medicare hospitals provide all patients an appropriate medical screening, examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures. Stabilizing treatment could include medical and/or surgical interventions, including abortion. If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.

“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Becerra said in the press statement. “Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care.”

“We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need,” Becerra added.

National pro-life groups, such as National Right to Life, were quick to observe that EMTALA was intended to require hospitals that receive Medicare funds to provide emergency treatment regardless of financial status, not, however, “to smuggle in abortion.”

Life Legal noted regarding EMTALA:

This 1986 bipartisan law prohibits “dumping” of indigent patients by requiring federally funded hospitals to assess and treat patients with emergency medical conditions, regardless of their ability to pay. A later amendment to the law made clear that, when dealing with pregnant women, hospitals must consider the well-being of both the woman and her unborn child.

Following the Biden administration’s executive order and EMTALA “guidance,” the state of Texas filed a lawsuit.

“Biden is attempting to twist federal law to force abortions in TX,” Attorney General Ken Paxton posted to Twitter in July 2022. “TX law protects pre-born life. Biden’s HHS is attempting to undo all that.”

Paxton’s office added:

By this move, the Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic. EMTALA does not authorize and has never been thought to authorize the federal government to require emergency healthcare providers to perform abortions.

“This administration has a hard time following the law, and now they are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions,” the Texas attorney general said. “I will ensure that President Biden will be forced to comply with the Supreme Court’s important decision concerning abortion and I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”

In early August 2022, Paxton filed a motion to enjoin the Biden administration from using EMTALA to achieve its abortion agenda.

The attorney general targeted the Biden administration’s attempt to incite fear that Texas’ abortion law will prevent women from obtaining an abortion if they are in a life-threatening medical crisis. All states that ban abortions allow the procedure in these dire situations.

“Texas law has long permitted doctors to perform abortions when the life of the mother is at risk,” the attorney general’s office emphasized. “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.”

Life Legal Defense Foundation’s amicus brief was submitted in support of the state of Texas’ lawsuit.

The pro-life law firm states:

We argue that the use of the word “individual” in EMTALA should be construed to include an unborn child. This would allow unborn children harmed by violations of the law to seek legal recourse for their injuries – and would impose a commensurate obligation on hospitals and physicians to provide emergency care for children in the womb, rather than aborting them.

“Texas law includes civil and criminal penalties for abortionists, which resulted in every abortion provider leaving the state,” Life Legal observed. “Although women can still legally obtain and ingest abortion drugs in Texas, existing restrictions have resulted in nearly 10,000 children being born rather than aborted since the Supreme Court overturned Roe.”

“The Biden administration cannot now use EMTALA to turn emergency rooms into abortion mills,” the law firm asserted. “But they haven’t stopped trying!”

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Susan Berry, PhD is national education editor at The Star News Network. Email tips to [email protected].