No dumping unborn children

NICK EICHER, HOST: Coming up next on The World and Everything in It: pro-life states versus the federal government.

After the Dobbs decision in 2022, the Biden Administration issued guidance claiming that a federal law preempted state laws protecting babies from abortion. The law in question: EMTALA—the Emergency Medical Treatment and Labor Act.

MARY REICHARD, HOST: Texas eventually sued the federal government, saying EMTALA does not require healthcare providers to perform abortions. Meanwhile, the federal government sued Idaho, claiming its protections for unborn babies conflicted with EMTALA.

Last Tuesday, the 5th Circuit Court of Appeals affirmed a lower court ruling in Texas. That decision found the Biden administration went too far in requiring doctors to perform abortions in medical emergencies. And on Friday, the U.S. Supreme Court allowed the state of Idaho to continue enforcing its protections for unborn babies in emergency room situations.

EICHER: How do these cases play into the larger conflict over abortion in America?

Joining us now to talk about it is Steve Aden. He’s the Chief Legal Officer and General Counsel for Americans United for Life.

REICHARD: Steve, good morning. Glad you’re here. Well, let’s just start with EMTALA itself what is it?

STEVE ADEN: EMTALA is a part of Medicaid that was signed by President Ronald Reagan back in the 1980s that forbids emergency departments that receive Medicaid, Medicare rather, most of them do, from engaging in what's called ‘patient dumping’—from refusing treatment for patients who are either in emergent circumstances or in active labor. It was a real problem back then, and the principal example of that practice was women in active labor. What’s happened now is that since the Dobbs case, in 2022, the Biden administration has reached through every possible argument to try to recreate a federal right to abortion that the Supreme Court set aside in the Dobbs case, overturning Roe vs. Wade. And that’s what brings us to these court cases in Texas and in Idaho and the Supreme Court's recent actions.

REICHARD: Well, what was the Fifth Circuit Court's reasoning for siding with Texas and last week’s ruling?

ADEN: The Fifth Circuit unanimously, a three-judge panel, got it right, I think. They said, look, the EMTALA statute actually refers to protecting women and infants in the womb, in active labor. The word individual in that statute means not only the health of the woman, but the health of her unborn child. So Congress in EMTALA was concerned, not just about women in labor, it was concerned about the infants in their wombs. And the Biden administration has flipped that on its head and mandated using that statute that every emergency department that receives Medicare funds provide for essentially elective abortions when a woman presents to the emergency department claiming that the pregnancy threatens her health.

REICHARD: After the 5th Circuit issued its ruling, a pro-abortion writer named Jessica Valenti, she's a pro-abortion writer, posted an article on her Substack that’s called Abortion, Every Day and that article was titled, “Of Course They Want Us Dead.” and she said that the ruling—quote— “is part of a much broader plan to normalize women's deaths and to get voters used to the idea of divorcing abortion from health care,”—close quote. How would you respond to those claims?

ADEN: Well, that’s outrageous and misguided, of course Mary. The point is that abortion is not actually a part of health care properly understood. It's an elective procedure in the states where it is still legal. And it doesn't do anything to prevent or treat disease. Pregnancy is a natural state for women who are pregnant. Even though the Biden administration's Food and Drug Administration recently changed the rules related to chemical abortion to insist that pregnancy is a quote unquote, “disease” that needs to be treated, that's not so. Pregnancy is a natural state. And just as pregnancy is not a disease, the health of women and their babies in the womb, is safeguarded by federal law, and we're glad that the the Circuit Court of Appeals recognized and respected that and we hope that the Supreme Court will also. I have good hopes that the Supreme Court will see it the same way as well.

REICHARD: In the Idaho case, a 3-judge panel from the 9th Circuit Court of Appeals initially ruled in favor of the state, but then reversed course. It imposed an injunction against Idaho’s pro-life law. What do you make of the Supreme Court's decision to let Idaho continue to enforce its abortion law between now and when the high court hears that case in April?

ADEN: So the way that I interpret that is that the Supreme Court from time to time does get a little tired of the Ninth Circuit's shenanigans. And in this case, it saw that the Ninth Circuit had moved to impose for a big chunk of the whole United States—the western part of the United States, a directive that emergency departments at hospitals act as abortion centers, in essence, at the behest of the Biden administration. So I think that it augurs well for the review and ultimate decision in the Supreme Court.

REICHARD: Well, that raises a question in my mind and this is my last question. Roe versus Wade was overturned in 2022. Following that, pro-life ballot measures largely failed. So what do you expect to see in 2024?

ADEN: Well Mary, Americans United for Life reminds everyone that what we have seen is in some instances, state popular ballot initiatives go the wrong way. That’s simply an exercise of, in our view, subverting the will of the people as expressed through their state legislatures, by getting 51 percent of voters out of blue districts to vote for abortion. They have done that in several states. There’s a limited number of states where they can try that we think they will have far less success. But look, the point is when you look at elections, pro-life candidates have won hands down in the last in the last run 12 pro-life governors won, many of them handily, running on pro-life platforms. And the move to protect life in the states in the state houses continues to grow strong, Americans United for Life clocked over 60 new pro-life laws this past year and we expect to see at least as many at the spring in the state houses. So the push for life-protecting legislation is still strong. You know, we’re watching closely and working against those pro-abortion state ballot initiatives. But I believe that the the general initiative, the general inertia is still in the right direction.

REICHARD: It’s a long game, isn’t it? Steve Aden is the chief legal officer and general counsel for Americans United for Life. Steve, thanks so much for joining us today.

ADEN: My pleasure, Mary, thank you.

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