In The Wake Of Roe’s Demise, Democrats Are Doing All They Can To Thwart Democracy

by John Daniel Davidson

Democrats say they love democracy, but when it produces laws they oppose, they’ll use all their power to undermine it.
 
Democrats love to talk about democracy — mostly about how it’s under threat from Republicans and “Christian nationalists” and anyone who opposes their agenda. But at least on a rhetorical level, they seem to cherish democracy and rightly think that a government of the people, by the people is the surest safeguard against tyranny.
 
In practice, though, they hate democracy and will use every tool at their disposal to subvert and destroy it. Hardly a day goes by that Democrats don’t proclaim as much by their actions. Just look at their response to the Supreme Court overturning Roe v. Wade last month, which triggered laws in more than a dozen states banning or placing new restrictions on abortion. Voters in those states elected the people who passed these new laws, which in many cases are broadly popular. By overturning Roe, the court breathed new life into the democratic process, returning an issue to the American people that an earlier Supreme Court had snatched away from them.
 
But Democrats don’t really want democracy when it comes to abortion, which they consider sacrosanct. They have no qualms about protecting it from regulations by state lawmakers through the raw exercise of federal executive power, if need be. This week, Attorney General Merrick Garland threatened to sue states that have outlawed or restricted abortion since the end of Roe, and he also said the Justice Department would try to get a judge to toss a Texas lawsuit that would block newly issued rules from the Biden administration’s U.S. Department of Health and Human Services forcing doctors to perform abortions in emergency rooms.
 
According to the Wall Street Journal, Garland’s DOJ said last week it had launched a special task force to “evaluate state laws that hinder women’s ability to seek abortions in other states where the procedure remains legal or that ban federally approved medication that terminates a pregnancy.” The task force will also “oppose state efforts to penalize federal employees” who perform abortions “authorized by federal law.”
 
What could that mean? Well, take a look at the lawsuit Texas Attorney General Ken Paxton just filed against HHS. The administration is trying to use the federal Emergency Medical Treatment and Active Labor Act (EMTALA) to force ER doctors to perform abortions, even if it contravenes state laws outlawing the procedure. EMTALA was passed in 1986 as a way to prevent “patient dumping,” or turning away people who couldn’t pay, and it requires hospitals that receive Medicare money (which today is all of them) to treat people who show up at an ER in need of emergency treatment.
 
The Texas lawsuit argues the Biden administration is trying to “use federal law to transform every emergency room in the country into a walk-in abortion clinic,” and that “EMTALA does not authorize — and has never authorized — the federal government to compel healthcare providers to perform abortions.”
 
Garland and HHS claim that EMTALA preempts state law, but it’s unclear what that means in the context of the new HHS rules. If a state legislature passed a law saying that emergency rooms are prohibited from treating patients who have no health insurance, then yes, EMTALA would preempt that.
 
But as Paxton’s lawsuit rightly notes, the law says nothing about abortion, nor does it say anything about which specific treatments a hospital ER must administer. It only states that Medicare-participating hospitals have to provide “stabilizing treatment” for “emergency medical conditions,” and it specifically defines both of those terms in the statute.
 
For Democrats, though, laws passed by representatives of the people don’t carry as much weight as rule by administrative fiat. On July 11, the Biden administration’s Centers for Medicare and Medicaid Services issued “guidance” purportedly reminding hospitals of their obligations under EMTALA. But the guidance was much more than a reminder, and it was accompanied by a letter from HHS Secretary Xavier Becerra that amounted to an abortion mandate for hospitals, asserting powers under EMTALA that simply don’t exist anywhere in federal law.
 
First, Becerra’s letter claims that if an ER doctor determines that “abortion is the stabilizing treatment necessary to resolve [an emergency medical condition as defined by EMTALA], the physician must provide that treatment.”
 
But this is nothing more than a cheap word game. Abortion isn’t a “stabilizing treatment,” and nowhere in federal law is it construed as such. Becerra is conflating Democrats’ loose rhetoric about abortion — that it’s “reproductive healthcare” or “women’s health” — with the straightforward reality of the federal EMTALA statute, which says nothing about abortion and, to the contrary, specifically includes a mention of an “emergency medical condition” as one that threatens the life of an unborn child.
 
Second, Becerra’s false claim that EMTALA preempts state abortion laws is contradicted by the plain language of the law itself, which says it doesn’t preempt state law “except to the extent that the requirement directly conflicts with a requirement” of EMTALA. But abortion is not a requirement of EMTALA and doesn’t even fit the law’s definition of “stabilizing treatment” for an “emergency medical condition.”

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