The Biden administration says federal law preempts some types of bans on abortion. Doctors are not allowed to deny someone an abortion if their health or life is at risk, according to the U.S. Department of Health and Human Services (HHS). This applies regardless of what state laws hold, says HHS.
HHS cites the federal Emergency Medical Treatment and Active Labor Act (EMTALA), which says—among other things—that some hospital emergency rooms must treat people regardless of their ability to pay or of any state laws indicating otherwise. “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,” explains HHS in a July 11 press release. “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.”
As far as I can tell, no state abortion ban lacks an exception for the life of the mother. And while at least one pro-life group would support a ban with absolutely zero exceptions, this is not a mainstream or popular position, even among people who support abortion bans. But exceptions for life-threatening conditions can be tricky to interpret, as Axios explored recently. Some may be considered to exclude conditions that are dangerous and could become life threatening in time but are not imminently threatening, forcing doctors and patients to wait until a woman’s condition worsens to end a pregnancy.
And a number of state abortion bans in place or in the works lack exceptions when a pregnancy puts a woman’s health at risk in a way that is not imminently life-threatening.
But under the HHS’ new “clarifying guidance” on the EMTALA, allowing abortion procedures to save the life or health of a pregnant woman seem to be a must.
“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,” says an HHS explanation of the guidance. “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.”
The guidance states that emergency medical conditions include “medical conditions with acute symptoms of sufficient severity that, in the absence of immediate medical attention, could place the health of a person (including pregnant patients) in serious jeopardy, or result in a serious impairment or dysfunction of bodily functions or any bodily organ.”
HHS Secretary Xavier Becerra also issued a letter to healthcare providers stating explicitly that “federal law preempts state abortion bans when needed for emergency care.”
“If the results of a complaint investigation indicate that a hospital violated one or more of the provisions of EMTALA, a hospital may be subject to termination of its Medicare provider agreement and/or the imposition of civil monetary penalties,” wrote Becerra. “Civil monetary penalties may also be imposed against individual physicians for EMTALA
violations.”
“EMTALA’s preemption of state law could also be enforced by individual physicians in a variety of ways, potentially including as a defense to a state enforcement action,” he wrote.
This HHS guidance seems to be the first of what we can expect to be many turf battles over abortion laws.
In June, U.S. Attorney General Merrick Garland suggested that the Food and Drug Administration’s approval of abortion pills meant that states could not ban them. “The FDA has approved the use of the medication Mifepristone” (a drug used to induce abortion), stated Garland. “States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
FREE MINDS
When “anti-wokeness” becomes an obsession. At The Spectator, Jesse Singal explores what happens when opposition to illiberal progressive ways becomes a personality-warping fixation—when “anti-wokeness curdl[es] into reactionary crankery,” as Singal puts it. Ultimately, it’s dangerous to make being anti-anything into a core facet of your identity, he suggests.
Singal doesn’t deny that “there’s a moral panic afoot in many liberal institutions,” in which “a culture of illiberalism has corroded these spaces.” But he finds it baffling that “there are anti-wokesters who in one breath decry the illiberal nature of ‘wokeness,’ and who in the next declare their support for…Donald Trump.” He also sees “many anti-woke types develop an exaggerated suspicion of mainstream authority that leads them to weird places,” and a wrongful belief that these illiberal positions are popular among most left-of-center folks.
“The people most responsible for making progressive spaces toxic are too-online weirdos,” writes Singal. “Don’t become one yourself.” Read more here.
FREE MARKETS
Why immigrants are upwardly mobile: In Streets of Gold: America’s Untold Story of Immigrant Success, economists Ran Abramitzky of Stanford and Leah Boustan of Princeton compare the income trajectories of the children of U.S. immigrants with incomes of children born to non-immigrants. “The economists found that on average, the children of immigrants were exceptionally good at moving up the economic ladder,” notes The New York Times opinion writer Peter Coy. Among kids who grew up poor, the children of immigrants “were nearly twice as likely to become rich as the children of people born in the United States.”
This fits with the findings of the National Academies of Sciences, Engineering, and Medicine, which reported in 2017 that while “first-generation immigrants are more costly to governments than are the native-born,” the “second generation are among the strongest fiscal and economic contributors in the U.S.”
But why? Coy explains:
Once Mr. Abramitzky and Ms. Boustan found abundant evidence of second-generation immigrants’ upward mobility, they tried to figure out why those children did so well.
They arrived at two answers. First, the children had an easy time outdoing parents whose careers were inhibited by poor language skills or a lack of professional credentials. The classic example is an immigrant doctor who winds up driving a cab in the United States.
Second, immigrants tended to settle in parts of the country experiencing strong job growth. That gave them an edge over native-born Americans who were firmly rooted in places with faltering economies. Immigrants are good at doing something difficult: leaving behind relatives, friends and the familiarity of home in search of prosperity. The economists found that native-born Americans who do what immigrants do — move toward opportunity — have children who are just as upwardly mobile as the children of immigrants.
While immigrants and their children are often accused of putting Americans out of jobs, Abramitzsky and Boustan say the opposite is true, notes Coy:
Less skilled immigrants gravitate toward jobs for which there is relatively little competition from native-born Americans, such as picking crops, while highly skilled immigrants often create more jobs for native-born Americans by starting businesses and inventing things, they write.
QUICK HITS
Four U.S. Senators are literally older than chocolate chip cookies pic.twitter.com/WIbMkAQhqT
— Sweet Meteor O’Death (@smod4real) July 11, 2022
• U.S. troops are still engaged in all sorts of activities in the Middle East—and not all of them peaceful.
• Pharmaceutical company HRA Pharma has applied with the Food and Drug Administration to sell birth control pills over-the-counter. (For background on this issue, see “Why Americans Can’t Have Over-the-Counter Birth Control Pills” and “Over-the-Counter Contraception Is Immensely Popular. But Democrats Have Doomed It.“)
• Most Democrats don’t want President Joe Biden to run in 2024. Some 64 percent said they hope for a different 2024 candidate, according to a New York Times/Siena College poll.
• When pro-life becomes pro-censorship: anti-abortion activists “are now exploring ways to stop people not just from performing abortions but from sharing information about abortion services,” writes First Amendment lawyer Robert Corn-Revere.
• Big cities saw major population losses between July 2020 and July 2021 (continuing a trend that has been percolating for a few years), according to a new analysis of U.S. Census data conducted by the Brookings Institute. “Cities that showed the greatest percentage losses were San Francisco, New York, Washington, D.C., and Boston,” with substantial losses also happening in St. Louis and Atlanta. “Among the few cities that grew more rapidly in 2020-21 than in the previous year are four in interior California (Riverside, Stockton, Fresno, and Bakersfield), two in Nevada (Reno and North Las Vegas), as well as Gilbert, Arizona and Raleigh, N.C.”
• Japan’s gun restrictions don’t entirely explain its low crime rate.
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