The Manipulation of EMTALA
Louis Eduard Fournier, Coronation of the Virgin Mary, 1886.
How sad when beneficial measures are twisted by those with a manipulative political agenda. The Emergency Medical Treatment and Labor Act (EMTALA) was passed by Congress and signed into law by President Reagan in 1986. Its purpose was to ensure that Americans had access to emergency medical services even if they lacked financial means or health insurance. This is very much in conformity with the Catholic view that basic health care is a human right, especially in emergency situations. Now the Biden administration is using EMTALA to force an abortion mandate onto physicians.
Xavier Becerra, Secretary of the Department of Health and Human Services (HHS), issued guidelines that require physicians to provide abortion as “treatment” for pregnant patients in emergency medical situations. Furthermore, HHS declared that state abortion laws are now “preempted” by the new federal guidelines. This was a blatant attempt by the Biden administration to portray abortion as health care and to counter the pro-life state laws increasingly coming into effect across the country following the US Supreme Court’s reversal of Roe v. Wade in the Dobbs decision this summer.
The National Catholic Bioethics Center (NCBC) signed a joint public statement with the Catholic Medical Association denouncing this action by the Biden administration. We also signed on to an amicus curiae or friend of the court brief in support of the State of Texas and several other plaintiffs’ legal challenges of these guidelines. Thankfully, this legal action was successful. The federal district court judge blocked the enforcement of these guidelines in Texas. The guidelines will likely work their way up to the Supreme Court through other cases and the appeals process. Please do keep in your prayer intentions that justice will prevail. Any fair reading of EMTALA’s text shows that it was meant to ensure that everyone can receive good emergency treatment, including preborn children. It was never meant to be used as a mandate for direct abortions.
We must have crystal clarity on the fundamental ethical principle that one may never commit an injustice in the service of a “greater good,” or any of the other justifications that one often finds in utilitarian or consequentialist ethical systems. Directly intended abortion is always a grave injustice and never health care or an ethical action. Two of our NCBC ethicists recently wrote on this topic for our newsletter, Ethics and Medics.
What should physicians do in clinical cases where both the mother and the preborn child are at grave risk unless an intervention is done to save the life of the woman, but this same action could harm her baby? Thankfully, such ethically challenging cases are rare, but they do arise. This is a key instance where the Catholic moral and intellectual tradition makes a major contribution to health care ethics. The bedrock principles are that one may never directly will or commit an injustice and that both the mother and preborn child are patients who must receive effective treatment. It is also true that some situations do not have easy ethical solutions. There are tragedies where medical science is not able to save or cure gravely ill patients, including pregnant mothers.
The principle of double effect has been used by Catholic moral theologians and ethicists for centuries. It applies to these most difficult situations where the only effective treatment to prevent the mother’s death is gravely prejudicial to the life of the preborn baby. I have already written about the application of this principle to high risk pregnancies in my NCBC president’s messages.
The key point in double effect reasoning is that one may tolerate an unwilled evil effect that results from a good action if the good that is intended and done is proportionately greater than the bad effect that also results. Directly killing a preborn child—an abortion—is never an ethical treatment to save the life of the child’s mother. One could, however, ethically perform a hysterectomy to save a mother’s life if that was the only good or effective treatment for her uterine cancer, even if she were pregnant and the child would not survive the operation. Clearly, however, this would have to come as a last resort after exploring all other options to save the preborn baby’s life via other medical interventions. In some cases, early induction of labor is possible once the preborn child has a chance of surviving outside the womb.
The key ethical point is that removing a cancer to save the woman’s life could be an acceptable treatment, and the loss of her child’s life would come as an unintended and indirect, even if foreseen, consequence of this good action. In some cases, pregnant mothers have made heroic sacrificial decisions to forego ethical treatments that could have saved their lives, but which would have indirectly harmed their preborn children. St. Gianna Beretta Molla was a medical doctor who was canonized for her heroic virtues and exemplary life. She made this choice, but she was under no moral obligation to do so.
What the pro-abortion lobby and the Biden administration are trying to do is create ethical confusion and foster a key misunderstanding in the minds of the general public—that we must sometimes commit abortions to save the lives of mothers. There are rare situations where a pregnant mother’s life is at risk and the only effective medical interventions available can lead to the death of her child, but that is worlds apart from directly killing a preborn child as a “treatment” for the mother.
An integral part of the principle of double effect is that the good effect may never be brought about by the bad effect of the action, i.e., killing the child may not be the means to saving the mother. The moral law is clear. We may never do evil even if motivated by a good intention or by hope that it will have a good result. (Romans 3:8)
