House happy to let women die

Today the GOP-led House of Representatives, with the blessings and encouragement of the United States Council of Catholic Bishops and extremist religious groups such as the Family Research Council, passed a bill in a vote of 251 to 172 that would, among other things, allow doctors and hospitals to “exercise their conscience” by letting pregnant women facing emergency medical conditions die.

For more, go here.

15 thoughts on “House happy to let women die

  1. This makes no sense. The effect is to make it extremely dangerous to be pregnant, even more dangerous than it already is (in comparison with having a first-trimester abortion). Depending on where I lived–say, in an area where I could be taken to a hospital that prioritizes its religious creed over its patients’ lives–I think I would be very wary about becoming pregnant, and might be likelier to get an abortion than otherwise. This seems at odds with the pro-life agenda.

  2. This smacks of demagoguery by Pelosi; I can’t see what in the bill she’s referring to that’s supposed to support this charge. Is it the limitation on abortion funding? Doesn’t seem like it; those provisions have a carve-out for care in extremis. Is it the anti-discrimination provisions? Also doesn’t seem like it, since there are already similar provisions in US federal and state law and Pelosi’s parade of horribles hasn’t come to pass (moreover, it’s not as though the anti-discrimination provisions alter any positive obligations on hospitals). So what is Pelosi thinking?

  3. If what’s meant by “letting women die” is “having doctors decide whether or not they would like to perform abortions on a patient”, then I don’t see the issue with the bill in a pro-life state, unless some constitutional action is taken to mandate rights to abortions for women.

  4. Nemo and “Dan Rather” (really?)–

    According to the linked article, the Emergency Medical Treatment and Active Labor Act, currently in effect, requires hospitals to either (a) stabilize a patient in a life-threatening condition or (b) refer the patient to a hospital that will treat the patient.

    According to the text of H.R. 358, a hospital may both (a) refuse to stabilize a patient in a life-threatening condition and (b) refuse to refer the patient to a hospital that will treat the patient.

    Do you have some additional information about why this is not a change to existing law?

  5. But the conscience protection provision is pretty much the same as existing law (I’m thinking Hyde-Weldon here). I thought that the only reason it was added to the Protect Life bill was that it has to be re-enacted every time there’s a legislative change to appropriations for Health and Human Services.

    Yet Hyde-Weldon has worked in tandem with EMTALA for a long time. One would expect that, if there had ever been a case in practice where a hospital had violated EMTALA with regard to a pregnant woman and successfully (or even unsuccessfully) argued that it was OK because of Hyde-Weldon, the case would have gained widespread notoriety, but I for one never heard of such a thing.

    This suggests the corollary (already fairly intuitive, some would say) that abortions are that are required to “stabilize” an emergency patient within the generally understood meaning of EMTALA are like unicorns.

    So if that’s the sort of thing that Pelosi has in mind (which is hard to say for certain, because she offered no real analysis of how these horrors would be brought about), then it’s difficult to escape the conclusion that this was just demagoguery.

  6. Can you elaborate on how abortions required to stabilize an emergency patient within EMTALA are like unicorns? There are indeed cases in which doctors judge that an abortion is required to stabilize an emergency patient.

    If it’s the case that a woman has not been denied a life-saving abortion by a religious hospital since Hyde-Weldon has gone into effect, a non-unicorn interpretation is also suggested: pregnant women in emergency situations in which abortion is indicated have been quite lucky so far. Perhaps we should not rush to adopt legislation which would permanently allow hospitals to refuse to provide life-saving care because it looks as if we’ve been lucky so far.

    In fact, not everyone may have been so lucky; the ACLU has cited instances in which they claim the life of a woman has been put into danger by religious hospitals’ refusals to authorize treatment deemed necessary by a physician: http://www.aclu.org/files/assets/Letter_to_CMS_Final_PDF.pdf And this is the article they cite: http://www.ansirh.org/_documents/library/freedman_ajph10-2008.pdf

    I am curious about why whether a specific procedure is, or is not, ever needed to stabilize (why the scare quotes?) an emergency situation should be considered intuitive, given the amount of time doctors must devote to learning which procedures are appropriate in which circumstances. I am further curious about why such intuitions should count for anything in public policy debates (perhaps I misunderstood you here). Of course, we can all agree that it would be nice if it were not the case that an abortion is ever needed to resolve an emergency.

  7. Well, the trouble is your wording is vague:

    According to the text of H.R. 358, a hospital may both (a) refuse to stabilize a patient in a life-threatening condition and (b) refuse to refer the patient to a hospital that will treat the patient.

    Does this imply that a hospital may perform acts a and b regardless of the treatment the patient requires, or does it imply that there are some instances that exist (such as abortion requiring instances) in which hospitals would be justified in performing acts a and b?

    If it’s the latter, I don’t see the problem. If it’s the former then this is a very strange bill and it seems almost absurd that it ever made it anywhere, especially with the support of any large group of politically affiliated people. Such a bill would be analogous to a bill that banned money. It’s not conservative or liberal, but just absurd.

    Then again this would all be solved if I wasn’t too lazy to read the bill.

  8. @Gorgonzola: By comparing such cases to unicorns (with due deference to the adage that comparisons are odious), I was venturing that we might validly regard such cases as either rarissime, or else non-existent, or else arguably even a matter of self-contradiction.

    I find it unsatisfactory simply to think that we’ve been very lucky as a factual matter, and let me suggest one reason why. As even the current Administration has noted in this context, repeal by implication is disfavoured and there is a strong presumption for interpreting two laws in harmony. I just find it implausible that in 25 years, or however long EMTALA has coexisted with federal conscience clauses equivalent to that the Protect Life bill, a conflict or implied repeal would not have been uncovered in some judicial or administrative context. That strongly suggests to me that as a *legal* matter, EMTALA and such conscience clauses don’t conflict, i.e. even if it is *possible* to interpret the respective texts in a manner that would cause them to conflict, such meanings aren’t the legally recognized ones. Which brings me to my use of quotes around “stabilize”. Those were not scare quotes, they were regular quotes, because I meant to highlight that words in statutes are terms of art, defined by caselaw, practice and/or other statutory words.

    Now, as you note, ACLU has identified a handful of cases which it thinks constitute “potential violations” (again, that’s a regular quotation, not scare quotes) of EMTALA where the presumed defense would be that the conduct was protected by Hyde-Weldon or the like. ACLU obviously has not failed to bring those cases to the attention of the proper channels. However, none of those cases or any others (again to my knowledge) appear to have resulted in a finding even at the administrative – much less the judicial – level of a violation of EMTALA. But *even* even if there had been, it would simply mean that all along, one or both of [i] Hyde-Weldon type language and [ii] the EMTALA language did not have the same meaning in law that some people – perhaps including some doctors – presumed it had.

    Given all this, I think it was incumbent upon Pelosi not to say publicly what she did about the Protect Life Act without offering some very material qualifications and elaborations. These would presumably include [i] explaining that the anti-discrimination language in the bill has already exists alongside EMTALA, [ii] acknowledging that it is not clear that this existing arrangement has given rise to women dying on an emergency room floor as a proximate result of the suspension of a legal obligation the hospital otherwise would have had specifically to carry out an emergency abortion, [iii] even assuming there have been such cases, explaining why anyone should expect the enactment of the Protect Life Act to increase the likelihood of such cases in future.

    (Side question: does EMTALA seem to require hospitals to stabilize an emergency medical condition of both the pregnant woman and the unborn child?)

  9. Dan, H.R. 358 singles out abortion as the circumstance in which a hospital is required neither to provide the treatment nor refer. If my language was vague, it was because I was drawing a parallel between the two laws to try to figure out why the new bill apparently did not change anything.

    The problem is why any hospital should be exempted from the eminently sensible law requiring it to provide legal, medically indicated, life-saving health care, as one would expect a hospital to do. We are talking about the sorts of circumstances in which doctors indicate that a woman — and, note, the fetus she is carrying — is very likely to die if abortion is refused or delayed too long. You sometimes get the impression that people believe that a pregnant woman can waltz into a hospital with a nosebleed and walk out having tricked the nice nun into giving her an abortion after threatening a lawsuit.

  10. Nemo, thank you for your comprehensive reply; I’m afraid that given several deadlines I don’t have time to keep posting lengthy replies. For one thing, let me note that Hyde-Weldon has, I believe, been in effect for six or seven years? I don’t believe the original Hyde amendment removed the stipulation that hospitals must treat or refer, but please correct me if I am mistaken.

    I’m still not quite sure what to make of your talk about intuitions about treatment; treatment necessary for “stabilization” seems up to the doctor, and we have seen cases in which doctors disregarded religious directives in order to stabilize a patient. I believe people are concerned about cases in which doctors would go along with such directives despite their medical judgment. I’m also not sure how much we can conclude from the CMS’s declining to investigate the ACLU’s allegations; if the administration’s official position is that there is no conflict, it is doubtful the CMS would investigate without their backing. I’m not too interested in whether Pelosi is a demagogue, by the way.

  11. “The problem is why any hospital should be exempted from the eminently sensible law requiring it to provide legal, medically indicated, life-saving health care, as one would expect a hospital to do. We are talking about the sorts of circumstances in which doctors indicate that a woman — and, note, the fetus she is carrying — is very likely to die if abortion is refused or delayed too long. You sometimes get the impression that people believe that a pregnant woman can waltz into a hospital with a nosebleed and walk out having tricked the nice nun into giving her an abortion after threatening a lawsuit.”

    Right, so we mean only that the bill is about allowing doctors the right to not operate on women if they require abortions. Which is strange, since doctors already have that right (doctors are not obligated to engage in any treatment whatsoever which contradicts their religious or moral principles, by virtue of the church amendments in terms of abortions, and various others in terms of other medical procedures.)

    In this case I have no idea why the bill is even there, so I think you’re leaving something out (Doctors already have the right to refuse treatment to a woman who wants an abortion on the basis of their moral or religious dispositions). Perhaps what’s relevant is that the bill ALSO allows hospitals to not refer the women to providers that would grant them abortions. In which case, it’s fairly arguable that you can make a good case from precedent that you should be able to allow hospitals to do that (at least I see no reason why you shouldn’t. If a hospital thinks you are trying to kill a fetus, it is strange to require them to refer you to somewhere you can have that done at if they won’t do it).

  12. (Note also that whether or not the women will die as a result of not getting the treatment is irrelevant. E.g. Suppose a women will die unless a doctor invests in Goldman Sachs. It does not follow that the doctor should have to invest in Goldman Sachs as treatment for the woman’s ailment if the doctor finds it religiously or morally repugnant to invest in Goldman Sachs, by the code I just referred to earlier).

  13. @Gorgonzola, no worries. So, with regard to the intuition thing, I was alluding to the existence of people who would argue, that where a statute directs that hospitals must respond to medical emergencies affecting either a pregnant woman and/or her unborn child, and must further act to stabilize the condition of mother and unborn child alike, it should be commonsensical that Congress cannot have been contemplating that intentionally killing one of the two might be legally required in order to stabilize the condition of the other.

    However, since I am not well placed to be the expositor of their arguments, and the existence of such arguments was not central to my point, I will instead simply withdraw that passing remark.

    Now, with respect to Hyde-Weldon, I think you are right that it has been in effect about 7 years. I think you may also be right that the original Hyde Amendment did not explicitly address referrals. Perhaps where you mean to go with that is to suggest that 7 years is not enough to draw a conclusion about whether conscience language like the language in the Protect Life bill has, over time, any noticeable effect on women dying in emergency rooms. If so, and of course I invite correction if I misunderstood your import there, a few things come to mind in response:

    -The first thing is to question whether it’s true that that’s not enough time, but let’s assume for the moment that it is true.
    -Second, although I’m not sure if this is the very first example of explicit language protecting hospitals from discrimination for declining to *refer* for abortions, I note that it does appear at in federal law at least as early as 1996 (http://www.nps.gov/legal/laws/104th/104-134.pdf; look for Sec. 515).
    -Third, even 7 years of existing law is a pretty significant thing for anyone alleging that the Protect Life Act will let women die in emergency rooms (such as the House minority leadership, or the good people at RH Reality Check) to have omitted to disclose to their audiences. However, I understand from what you wrote that the conduct of the bill’s opponents is not your concern here, which is fine of course.

    Finally, if, as you suggest, some people are concerned about cases in which doctors would go along with hospital anti-abortion directives despite their medical judgment, I’m not sure I understand how the Protect Life Act would have any bearing on such cases. Perhaps there is a connection I’m not seeing, though.

  14. @Gorgonzola, sorry, I just realized I completely neglected to acknowledge the latest thing you said about the ACLU’s letter to CMS.  I do agree that we cannot draw *too* much from the fact that the incidents cited by ACLU did not result in any kind of finding of a violation of EMTALA (though we don’t know that they weren’t investigated).  However, we should draw even less from the fact that the ACLU alleged that the incidents constituted a violation (or, in the ACLU’s words, a “potential violation”) of EMTALA in the first place, since the ACLU is rightly viewed as either a litigant or a counsel with respect to such cases (i.e. it is either an interested party itself, or it is under a duty to assert a legal argument favorable to its client).

    At any rate, I certainly did not mean to suggest that no-one ever *thought* a hospital violated EMTALA by not performing an abortion, I was just observing that I had not heard of any case where this had been found to be so.

    Moreover, since EMTALA contains a private right of action (that is, the statute gives private parties and not only the government the possibility to sue for its enforcement), the ACLU could have sued about the incidents in its letter and had a court decide the issue – though usually you have to exhaust your possibilities of redress at the agency level first, which might have been what the ACLU was attempting in that letter.  Those incidents may even have resulted in lawsuits by now; I don’t know.  I do know, however, that litigants *have* actually gone to court a number of times in the quarter-century since EMTALA was enacted, to try to get a court to agree that EMTALA required a hospital or a healthcare professional to perform an abortion under some circumstance or other.  So far as I know, the success rate for such legal arguments has basically been nil – though that hasn’t entirely dissuaded the ACLU. But you can believe that if it were otherwise, the ACLU would have put those on-point precedents front and center in its letter. Instead, there are no judicial cases cited in the letter at all. If the ACLU can’t find a judicial opinion that is at least semi-favorable to its interpretation of a federal statute that has been on the books for 25 years, that ought to be a sign that the interpretation is dubious indeed.

    So in sum, I think it is probably fruitless to approach the Protect Life Act from a position that denies that there is, at the very least, a very strong legal presumption against the notion that hospitals are ever under a duty to perform an abortion.  Or, looked at another way, a presumption against the idea that abortion is ever a necessary form of emergency stabilizing care for the mother and/or unborn child in distress, as those terms and concepts are given meaning by EMTALA and related jurisprudence.  I really do not see how that would change one whit if the Protect Life Act were to become law.

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