As it does occasionally, especially on significant days, the Biden administration released a slate of measures it’s taking to protect abortion rights on Monday, the 51st anniversary of Roe v. Wade.
These initiatives, naturally, are often limited: sending letters to hospitals in ban states to remind them of their responsibilities, urging agencies to take various actions.
This list is similar, but one point in particular caught my eye. The White House, in materials shared with TPM, announced that it would be launching a “comprehensive plan” to educate patients about their rights under the Emergency Medical Treatment & Labor Act (EMTALA). EMTALA requires that hospitals receiving certain federal funds give patients stabilizing treatment amid medical emergencies. The White House plan will include informing patients about how to make a complaint if their rights under the statute are violated.
In Texas and Idaho, the administration is currently battling with Republican officials who contend that abortions cannot be part of that stabilizing treatment under their anti-abortion regimes.
“The Administration has long taken the position that the required emergency care can, in some circumstances, include abortion care,” the White House fact sheet reads. “The Department of Justice (DOJ) is defending that interpretation of the law before the Supreme Court, which is expected to rule by June.”
The administration (predictably) lost this argument at the 5th Circuit Court of Appeals, where the panel ruled that EMTALA’s silence on abortion — it’s silent on virtually all specifics of this stabilizing care — meant that abortions cannot be mandated under it, even when abortions are the necessary stabilizing care the law requires.
Despite the pretzelesque reasoning here, the Supreme Court has given cause for worry, taking up Idaho Republicans’ request to hear the case, leapfrogging the 9th Circuit, which was scheduled to hear arguments, and letting Idaho reimpose its abortion ban in all cases in the meantime.
In keeping with its post-Dobbs priorities, the administration is trying to shore up abortion protections in the narrow space where federal law still dictates and in emergency cases. Right now, that means wringing every drop of protective juice out of EMTALA — while it still can.
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