Washington D.C., Sep 24, 2021 / 15:01 pm (CNA).
The Biden administration is looking to “bail out” Texas pro-abortion groups with its new actions, one former senior HHS official told CNA this week.
The Department of Health and Human Services (HHS) is “twisting and turning and distorting the law in order to try to bail out their friends at Planned Parenthood,” said Roger Severino, senior fellow at the Ethics and Public Policy Center, in an interview with CNA this week.
Severino formerly headed the HHS civil rights office from 2017 to 2021, under President Trump’s administration.
The agency on Sept. 17 had announced three actions as part of an effort to “bolster” abortion in Texas, after the state’s pro-life law went into effect on Sept. 1.
HHS Secretary Xavier Becerra said his agency would increase family planning funding for clinics in the state, and enforce two existing federal health care laws.
“Today we are making clear that doctors and hospitals have an obligation under federal law to make medical decisions regarding when it’s appropriate to treat their patients. And we are telling doctors and others involved in the provision of abortion care, that we have your back,” Becerra stated.
One of the two laws which HHS said it would enforce is the Emergency Medical Treatment and Labor Act (EMTALA), a 1986 law requiring Medicare-participant hospitals to provide emergency stabilizing treatment to people who need it, or transfer patients to another hospital that can provide the treatment.
An HHS memo accompanying Becerra’s announcement said this law also applies to cases of active labor. Severino said this implies that HHS believes the law requires abortion as part of emergency care at hospitals.
“They are specifically now opining that abortion may actually be required under federal law,” Severino said of the announcement. “And that is absolutely outrageous.”
The text of the 1986 law makes specific references, in the case of a pregnant woman at a hospital, to the “unborn child” as well as the mother. Severino said the law “specifically protects unborn children and requires them to be stabilized, as well as mothers, in emergency situations.”
“Intentionally killing a child in the womb does not qualify as stabilizing treatment for the mother, and certainly not for the child,” he said.
The Trump administration in 2019 clarified that the law protects infants who survive botched abortion attempts, requiring that they be given necessary stabilizing care.
Other pro-abortion groups have contended that the law requires abortions as part of emergency care at hospitals. The American Civil Liberties Union has filed multiple lawsuits in the past against the U.S. Conference of Catholic Bishops and a Catholic health care system in Michigan, because of Catholic hospitals’ refusal to provide abortions as part of emergency care. The ACLU sued the bishops’ conference over its Ethical and Religious Directives for Catholic Health Care Services, which prohibits abortion.
In response to a CNA inquiry on enforcement of the law, an HHS spokesperson referred CNA to the secretary’s guidance issued on the Church Amendments – the second federal law the agency says it will enforce.
The Church Amendments prohibit discrimination against both health care workers who perform or assist in abortions, and those who object to performing or assisting in abortions.
Severino’s office in 2019 went public with allegations against the University of Vermont Medical Center, for allegedly forcing a nurse to participate in an abortion. Later in 2020, HHS referred the matter to the Justice Department, which filed a lawsuit arguing that the hospital had violated the Church Amendments in forcing the nurse to assist in the abortion.
The Biden administration quietly dropped the lawsuit in July, upon request by Becerra’s HHS.
Severino accused the HHS of selectively enforcing the Church Amendments.
“They are protecting abortionists instead of the victims of abortionists, which is beyond ironic. And they don’t have a legal basis to do so,” he said.
Furthermore, he said, the Church Amendments apply to employers and not to the state of Texas – which would mean that HHS’ enforcement of the Church Amendments in this case would be moot.
“But the Texas [heartbeat] law doesn’t really speak to Texas as an employer. So, they [HHS] are really barking up the wrong tree on this one, in order to signal to the administration’s allies in the abortion industry that they’ve got their back,” he said.
The agency is also making $10 million available to the group Every Body Texas, which disburses grants to clinics for family planning services. Under the Title X program, funds cannot directly pay for abortions, although the Biden administration loosened existing regulations and will allow grants to abortion providers for services other than abortion.
Becerra announced that Texas clinics can now apply for HHS resources to help women “impacted by” the Texas law.
“They are shoveling loads of money towards their abortion industry allies on the pretext that, with fewer abortions being available in Texas, that there’s going to be an emergency need for more contraceptives,” Severino explained.
“That is effectively an admittance that people getting abortions were using it as a method of family planning,” he said, counter to a narrative that abortions might be “rare.”
The Texas Heartbeat Act restricts most abortions after the detection of a fetal heartbeat, which can occur as early as six weeks into pregnancy. The law is enforced through private civil lawsuits, and not by the state.
President Joe Biden in response promised a “whole-of-government” effort to maintain abortion in Texas.