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ACLU Moves To Extend EMTALA To Force Catholic Hospitals To Provide Emergency Abortions

The letter cites circumstances in three cases where Catholic Hospitals transferred patients with pregnancy related emergencies under circumstances the ACLU believe mandated a primary abortion that could have been provided at the Catholic facility.

Published Jul 15, 2010




On July 1, the American Civil Liberties Union submitted a letter asking Acting Administrator Marilyn Tavenner to issue a CMS transmittal declaring that the denial of emergency reproductive health care violates EMTALA.

The letter cites circumstances in three cases where Catholic Hospitals transferred patients with pregnancy related emergencies under circumstances the ACLU believe mandated a primary abortion that could have been provided at the Catholic facility.  It also cites a case where the Catholic hospital provided the abortion
in what the ethics committee determined to be justified under church doctrine.  The Administrator of the facility was removed by the local Bishop for allowing the abortion, the ACLU letter alleges.

CMS previously cautiously entered the abortion battleground previously when it issued a directive that a child born alive in a late term abortion attempt would legally be covered by the federal "Born Alive" law. Under the "Born Alive" law, the newborn would be presumptively covered by EMTALA for all necessary evaluation and stabilization, thereby defeating the intended abortion.

CMS has the option with the letter to decline to open or open an investigation into the incidents referenced in the letter.  If an investigation concluded there was a violation of EMTALA and that the violation was caused by the Catholic Church's doctrine on abortion, the case would likely go to the Supreme Court on the
Freedom of Religion issue.  It is not clear whether the ACLU has the legal standing or intention to pursue the EMTALA argument in civil court if CMS declines the cases or addresses them on issues other than abortion.

After 24 years of dealing with EMTALA, very little has surprised me and my predictions have been pretty much on-target, so I will risk a prediction:  CMS will not choose to be the vehicle for a legal battle between freedom of religion and Roe v. Wade without the blessing of the White House.

If they do act as a stalking horse for the ACLU, I would expect the case to end in the Supreme Court with either a victory for freedom of religion or a withdrawal of Catholic hospitals from the Medicare program; which, in turn would send the financially troubled system into collapse or nationalization of the healthcare
system -- assuming neither has occurred in the years necessary to reach the Supreme Court.



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