“Treating a pathology of the mother does not require a direct attack on the unborn child,” she added. “In fact, these diagnostic and procedural codes, used for reimbursement even for federal funding, are distinct from coding that constitutes a direct abortion.”
Hilliard identified several problems with the letter. Among other things, she called it inconsistent with the U.S. Catholic bishops’ Ethical and Religious Directives for Catholic Health Care Services. The directives stress that Catholic health care institutions are not to provide, or in any way help provide, abortion procedures.
The HHS letter “admonishes a provider to violate hospital policy…when such actions are not necessary,” Hilliard wrote.
Instead, she said, Catholic health care is already in accordance with the law.
The CMS memo “speaks to the need to protect the ‘life and health of the pregnant person’ which is consistent with existing federal law and which Catholic providers also are committed to maintaining,” she said.
She took issue with the HHS letter for omitting the definition of “health.” The letter only gives examples of an “emergency medical condition,” while EMTALA itself is explicit in its definition, she said.
It also includes a nod to the unborn.
Hilliard cited EMTALA’s definition of an “emergency medical condition” as “a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual's health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.’”
The omitted definition in the HHS letter “is misleading especially considering the language in Doe v. Bolton,” Hilliard warned.
Decided the same day as Roe v. Wade, Doe v. Bolton broadly defined what “may relate to health,” in regards to a woman obtaining an abortion, including “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.”
“Doe v. Bolton when paired with Roe opened the door to all abortions, medically necessary or not, based on how the physician and mother defined ‘health,’” Hilliard wrote. “It became a subjective standard which, if applied in this case, would force the Catholic hospital to allow all abortions on demand.”
(Story continues below)
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Hilliard accused the administration of overreach in an attempt to counter the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade. The ruling leaves abortion policy up to each state.
“The Dobbs decision is clear that the federal government has no role in mandating or regulating abortion,” Hilliard told CNA. “However, despite this fact, the federal government is threatening to penalize providers monetarily for following state law.”
At least one state — Texas — is pushing back.
On July 14, Texas filed a complaint against the HHS, CMS, and their leadership for their instruction regarding EMTALA. The state condemned the “Abortion Mandate” as an “unconstitutional exercise of authority” that “must be held unlawful and set aside.”
Texas accused the Biden administration of attempting to “use federal law to transform every emergency room in the country into a walk-in abortion clinic.”