TDD #17: Biden Issues Another EO & the AG Sues Idaho

August 3, 2022: President Biden Signs a new Executive Order

You can read the full text below.

Here's the EO in a nutshell:

Since Biden's first EO last month, the Department of Health and Human Services has taken the following actions:

(1) Clarified the obligation of hospitals and providers under the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, to provide to patients presenting at an emergency department with an emergency medical condition stabilizing care, including an abortion, if that care is necessary to stabilize their emergency medical condition, and

(2) Issuing guidance to the Nation’s retail pharmacies on their obligations under Federal civil rights laws — including section 504 of the Rehabilitation Act, 28 U.S.C. 794 and section 1557 of the Affordable Care Act, 42 U.S.C. 18116 — to ensure equal access to comprehensive reproductive and other healthcare services, including for women who are experiencing miscarriages.?

The Rehabilitation Act ensures that no persons are discriminated against on the basis of disability.

You can read the relevant section here: https://www.hhs.gov/civil-rights/for-individuals/disability/laws-guidance/index.html

The Affordable Care Act ensures that no persons are discriminated against on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities.

You can read the relevant section here: https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html

The Executive Order does not assert any alleged violations of either statute by any retail pharmacy.

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The Department of Justice files a lawsuit against Idaho to block an Idaho abortion law from going into effect.

Here's a link to the press release:

Here's a quick summary of the law at issue:

Effective August 25, 2022, performing abortions in Idaho will be a crime punishable by 2 - 5 years in prison and revocation of a professional license, unless the abortion is performed by a physician and it was deemed necessary to save the life of the mother, or the pregnancy was a result of rape or incest that was reported to law enforcement.

Here's a link to the law:

The U.S. government is trying to have the law blocked on the grounds it conflicts with Emergency Medical Treatment and Labor Act (EMTALA) in "situations where an abortion is necessary stabilizing treatment for an emergency medical condition." [text from the press release]

If a state law conflicts with a federal law on point, the federal law preempts the state law, or at least a part of the state law.

The EMTALA ensures that no one is denied emergency medical treatment regardless of ability to pay.

Here's a link to the EMTALA:

Per the DOJ's press release ...

"EMTALA requires hospitals that receive federal Medicare funds to provide necessary stabilizing treatment to patients who arrive at their emergency departments while experiencing a medical emergency. When a physician reasonably determines that the necessary stabilizing treatment is an abortion, state law cannot prohibit the provision of that care. The statute defines necessary stabilizing treatment to include all treatment needed to ensure that a patient will not have her health placed in serious jeopardy, have her bodily functions seriously impaired, or suffer serious dysfunction of any bodily organ or part.

As explained in the complaint, once §18-622 enters into effect in Idaho, a prosecutor can indict, arrest and prosecute a physician merely by showing that an abortion has been performed, without regard to the circumstances. A physician who provides an abortion in Idaho can ultimately avoid criminal liability only by establishing as an affirmative defense that “the abortion was necessary to prevent the death of the pregnant woman” or that, before performing the abortion, the pregnant patient (or, in some circumstances, their parent or guardian) reported an “act of rape or incest” against the patient to a specified agency and provided a copy of the report to the physician. The law provides no defense for an abortion necessary to protect the health of the pregnant patient."

BOTTOM LINE

The U.S. government is taking issue with the fact that physicians may not perform an abortion to preserve the health of the mother, but only to preserve her life.

Now, the Idaho laws also exempts medical professionals from liability if there is accidental harm to the fetus ...

Medical treatment provided to a pregnant woman by a health care professional as defined in this chapter that results in the accidental death of, or unintentional injury to, the unborn child shall not be a violation of this section. - Idaho Code Section18-622 (4)

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That's a wrap for TDD #17 ...

WANT TO LEARN MORE?

Check out my podcast I Am Roe, Hear Me Roar! ...

For a deeper dive into?Roe v. Wade,?what it says (and doesn’t say), listen to my podcast:?I Am Roe, Hear Me Roar!?available on all podcasting apps.?

You can also listen, or read the transcripts, on my website here:

Episode 5 is live!

GOT QUESTIONS? Drop them below ...

If you have specific questions, please drop them in the comments.?I’ll do my best to respond directly or in a future edition of?The Dobbs Daily.

Thank you for hanging out with me ... more coming up in?TDD?#18.