The Supreme Court may have acknowledged that the U.S. Constitution does not stand in the way of legislatures protecting babies before birth, but abortion advocates are launching new strategies to keep those babies at risk. The latest is a lawsuit, filed on August 2 by the U.S. Department of Justice, alleging that Idaho’s pro-life law conflicts with a federal law guaranteeing access to emergency medical care. Similar suits targeting other pro-life states are sure to follow.
In 2020, the Idaho legislature enacted a law banning all abortions except those “necessary to prevent the death of the pregnant woman” that would become effective 30 days after the Supreme Court “restores to the states their authority to prohibit abortion.” The Court did so on June 24, overruling Roe v. Wade and Planned Parenthood v. Casey. The law is scheduled to take effect on August 25.
The Emergency Medical Treatment and Labor Act (EMTALA), enacted in 1986, requires that anyone coming to the emergency department of a Medicare-receiving hospital with an “emergency medical condition” must receive necessary stabilizing treatment, regardless of their ability to pay. It provides that state laws are preempted “to the extent that a [state law] requirement directly conflicts with a requirement” of EMTALA. The Justice Department’s complaint claims that Idaho’s new law “would make it a criminal offense for doctors to comply with EMTALA’s requirement . . . where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks or even death.”
The fact that the Idaho law allows abortion in order to prevent the mother’s death makes DOJ’s claim that, by banning abortion, it “will likely result in death for the pregnant patient” confusing, to say the least. The suit asks a federal judge to rule that the Idaho law “is preempted by federal law” and to permanently block it “to the extent that it conflicts with EMTALA.”
Ed Whelan has outlined several problems with DOJ’s legal theory, which will not stop DOJ from using it to target other states that prohibit abortion. As he demonstrates, this isn’t really a proper preemption case at all. “If an Idaho hospital believes that it can’t comply with both Idaho law and the EMTALA condition on Medicare funding,” Whelan writes, “then it should decline the Medicare funding. It can’t accept the funding and then contend that it is somehow exempt from state law.”
Abortion advocates in Congress are trying to make taxpayers foot as much of the abortion bill as possible. On July 28, Senator Patty Murray (D., Wash.) announced that the appropriations bill for the fiscal year that begins on October 1, 2022, will include a long list of provisions to facilitate abortion. It would eliminate the Hyde amendment, a legislative provision that has barred the use of federal funds for most abortions since it was enacted in 1976. Most Americans support this restriction, and the Supreme Court repeatedly held, even while Roe v. Wade was on the books, that the Constitution does not require the government to facilitate abortion.
The Murray bill would not only lift the Hyde amendment’s protection for taxpayers, it would create new ways to force taxpayers to foot the abortion bill. These include a $350 million fund to pay for travel and other costs for women in pro-life states to obtain abortions elsewhere and to subsidize the construction and renovation of abortion clinics in pro-abortion states. The bill would increase funding for the Department of Health and Human Services’ Office of Civil Rights to fight pro-life states’ ability to protect unborn life. And it would create a new position at HHS, the “reproductive health ombudsman,” to “disseminate information to help individuals connect with . . . abortion funds; and provide information on safety related to self-managed abortions.”
Roe v. Wade itself demonstrated the commitment of those who claim that killing children in the womb is acceptable. Roe made virtually impossible even minor limits on abortion that had been in state statutes and the common law literally for centuries. The Supreme Court imposed upon the country an abortion regime more permissive than anything any legislature had adopted, that the American people had never supported, and that only a few countries in the world had embraced. Acknowledging that, as Americans can read for themselves, the Constitution does not protect any right to abortion will let the American people and their elected legislators choose how to handle abortion. But as these new federal efforts show, abortion advocates will be as aggressive as ever.
This piece originally appeared in The National Review