In 1986, Congress enacted a law that requires hospitals that receive Medicare reimbursements to provide medical care to patients having a medical emergency without regard to their ability to pay. The law is called the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA).

Two weeks after the U.S. Supreme Court’s Dobbs decision reversing Roe v. Wade, the federal Centers for Medicare and Medicaid released “guidance” reminding hospitals that they were obliged to perform abortions under the EMTALA Act, if the pregnant woman’s life was put at risk by her pregnancy. EMTALA, the guidance said, pre-empted state laws banning abortions.

The state of Texas sued to block the federal guidance and was quickly joined in the lawsuit by two medical associations comprised of anti-abortion doctors.

Both the District Court in Texas and the Fifth Circuit Court of Appeals ruled that doctors and hospitals were not required to perform abortions by EMTALA and that federal law and guidance do no supercede Texas’s rigid ban on abortion. It further ruled that the pregnant woman and her unborn fetus had equal rights and that the woman “does not have an unqualified right…to abort her child.”

Thus, even if the mother’s life is in danger and even if an abortion is necessary to save her life, the doctor decides—not the woman—whether to perform an abortion. Doctors who perform abortions in Texas are subject to harsh penalties, including loss of their medical license and steep fines.

Thom Hartmann called the judges “a handmaid’s court” and wrote that the three white male Republican men on the Fifth Circuit concluded:

To hell with the women, they essentially said: we have to do everything possible to rescue those innocent, virginal fetuses who are as-yet uncontaminated by sin.

The Republican judges even refused to refer to a fetus as a fetus, instead calling it a “child” and claimed that, as a “child,” it’s entitled to an equal level of life-saving care as is provided to the woman carrying it.

In other words, do everything possible to stabilize and thus save the fetus, even if that further endangers the life of the mother.

Their rationale was that fetuses aren’t mentioned in EMTALA, so therefore they must be children, and “children” are just as worthy saving as mom.

This decision will cause the deaths of women whose pregnancies endanger their lives. Yrs, women do die in childbirth, but not so often in civilized societies. These women may have other children who love them and depend on them, but the white guys in judicial robes concluded: Save the fetus above all.

You may recall Katie Cox, the 31-year-old pregnant mother in Dallas who sought court permission to have an abortion when she learned that her fetus had a rare condition called trisomy 18. Her doctors told her that the fetus might die in her womb or within minutes, hours or days after it was born. She might not be able to give birth in the future. The court gave her permission to obtain an abortion but State Attorney General Ken Paxton said any doctor who performed an abortion for Mrs. Cox would be prosecuted to the full extent of the law. Paxton didn’t need to act, however, because the Texas Supreme Court ruled that she was eligible to have an abortion. Katie Cox left Texas and had an abortion in New Mexico.

What’s clear from all this is that the provision in the Texas law that allows an abortion in dire circumstances , such as the danger to a woman’s life, is inactive, meaningless, moot.