Analysis Abortion

The Let Women Die Bill of 2011: H.R. 358 Forces Women to Play Russian Roulette in Their Hospital Emergency Room

Laura MacCleery

Congressman Joe Pitts used a misleading and inaccurate interpretation of medical law to push for the passage of H.R. 358, the Let Women Die Act of 2011. Chillingly, the bill that was passed would ensure that hospitals’ institutional dictates, including those at odds with medical science, could override the consciences of the doctors who work for them, even when those dictates unreasonably risk women’s lives.

Last week’s vote on H.R. 538, the Let Women Die Act of 2011, was a deeply disappointing new low for the House of Representatives, even if  the outcome was unsurprising given the chamber’s recent record of extremist, anti-woman bills.  The heated debate occasioned dueling Dear Colleague letters by Rep.’s Jan Schakowsky (D-IL) and the author of the bill, Rep. Joseph Pitts (R-PA), that made competing claims about the critical issue of whether the bill newly imperils the lives of women by allowing institutions and doctors to refuse to provide care even in life-threatening emergencies.

The dispute concerns the present scope of patient protections offered by an anti-patient-dumping law, the Emergency Medical Treatment and Active Labor Act, or EMTALA. Schakowsky’s letter highlighted the issue by noting that the “bill would, in effect, strip EMTALA of its power to ensure that women in emergency situations receive abortion care at hospitals by making their right to health care secondary to the hospital’s ability to refuse to provide abortion care.” Pitts, on the other hand, claimed in his Dear Colleague that because EMTALA already includes a reference to the “unborn child,” then “EMTALA currently recognizes both lives.”

Who’s right? A basic review of the law says that Schakowsky is, by a mile.  EMTALA uses the words “unborn child” in three places; all three make clear that the protection is intended to assure that a hospital seeking to transfer a woman in “active labor” (as in the title of the Act) must assess any health risks associated with the transfer for both the woman in labor and the child she is about to deliver.  The law does not, as Pitts claims, confer a freestanding interest in the health of an “unborn child” that would allow hospitals to deny care to a woman experiencing a miscarriage.  If it did so, this aspect of the Pitts bill would be superfluous.

In fact, in this American Journal of Public Health article by Lori Freedman, a religiously-affiliated hospital that actively refused to complete a miscarriage and risked a woman’s health in doing so, was reported for an EMTALA violation when it sought to transfer the patient.

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She notes:

“Dr B, an obstetrician-gynecologist working in an academic medical center, described how a Catholic-owned hospital in her western urban area asked her to accept a patient who was already septic [suffering from infection].

When she received the request, she recommended that the physician from the Catholic-owned hospital perform a uterine aspiration there and not further risk the health of the woman by delaying her care with the transport.

[From the doctor:] “Because the fetus was still alive, they wouldn’t intervene. And she was hemorrhaging, and they called me and wanted to transport her, and I said, ‘‘It sounds like she’s unstable, and it sounds like you need to take care of her there.’’

And I was on a recorded line, I reported them as an EMTALA violation. And the physician  [said], ‘‘This isn’t something that we can take care of.’’ And I [said], ‘‘Well, if I don’t accept her, what are you going to do with her?’’

[He answered], ‘‘We’ll put her on a floor [i.e., admit her to a bed in the hospital instead of keeping her in the emergency room]; we’ll transfuse her as much as we can, and we’ll just wait till the fetus dies.’’

This risky delay in care is caused by hospitals’ adherence to the Religious Directives put forward by the Catholic bishops – including in cases in which the Directives clearly conflict with commonly accepted medical standards.  The Directives specify that hospitals must wait until the fetal heart tone ceases before acting to complete a miscarriage, even if the pregnancy is clearly no longer viable.  Yet in the meantime, as in the case described by this doctor, women are at risk of becoming septic, a serious and life-threatening form of infection, and death.

One loophole that is rarely mentioned but is highlighted by the above story is that the protections of EMTALA cease to apply if a patient is admitted from the emergency room into the hospital, which may be one mechanism by which religiously affiliated hospitals currently escape the conflict while continuing to deny care.  In addition, if no one is seeking to transfer a patient, EMTALA is silent on the quality of care given to the patient, as courts have been clear that EMTALA does not, by itself, set out a standard by which to judge medical negligence. Ironically, then, if no physician seeks out a transfer to a facility willing to provide more appropriate care, thus risking a violation of EMTALA, patients may fall through the cracks, as  Freedman’s article describes.

The Pitts bill would also allow institutions to insist on policies that deny care to patients, even trumping the professional judgment and medical training of physicians. Freedman’s report tells one such story: a doctor appalled at the denial of care to a woman in the midst of miscarriage – a woman so ill that her eyes filled up with blood from the infection caused by the delay – subsequently quit his job in disgust. While his decision to resign assuaged his conscience, the next woman to find herself in a similar situation at that hospital may be even worse off, because the hospital has lost at least one doctor who prefers science-based medical care.

Nationally, one-sixth of hospital visits are to religiously-affiliated hospitals, that serve millions of people. The notion that care would differ so drastically from one emergency room to the next is out-of-step both with public health needs and with the beliefs of even religious adherents, who, polls indicate, agree with the broader public that access to medical care should not be restricted by religion. Women should not have to engage in a game of Russian roulette at their local hospital emergency room.

Only physicians, not institutions, have a conscience. Granting institutions a right of refusal merely guarantees that the very real consciences of doctors who choose to provide care consistent with their own beliefs and medical training will not be able to do so. Chillingly, the Pitts bill would ensure that hospitals’ institutional dictates, including those at odds with medical science, could override the consciences of the doctors who work for them, even when those dictates unreasonably risk women’s lives.

Analysis Politics

Paul Ryan Uses Falsehoods Behind Texas HB 2 to Push Yet Another Abortion Restriction

Ally Boguhn

In a CNN town hall Tuesday night, Paul Ryan agreed with an audience member's baseless sentiment that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics" in its Whole Woman's Health v. Hellerstedt ruling.

During a CNN town hall on Tuesday night, House Speaker Paul Ryan (R-WI) pushed falsehoods about the anti-abortion provisions at the center of the recent U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt being necessary for patient health and safety. Ryan nonsensically then used the decision as a launch point to promote House Republicans’ Conscience Protection Act, which passed in the House Wednesday evening and supposedly shields those who object to abortion from discrimination. The only things Texas’ provisions and the legislation have in common, however, is that they’re all about blocking access to abortion care.

Town hall audience member and executive director of New Jersey Right to Life Marie Tasy claimed during the event Tuesday that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics,” in its landmark ruling against two provisions—the admitting privileges and surgical center requirements—of Texas’ HB 2.

“Absolutely,” Ryan said in response to Tasy’s remarks. “I agree with that.”

But the provisions of the law in question were not about keeping anybody safe. As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

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Despite this, Ryan then used the falsehood at the center of HB 2 as a call to action for yet another anti-choice restriction: the Conscience Protection Act. After fielding the question from Tasy about how anti-choice issues could be advanced in Congress in the wake of the Court’s decision, Ryan pivoted to claim that the government is “forcing people to conduct [abortion] procedures”:

Actually, tomorrow we are bringing a bill that I’ve been working on called the Conscience Protection Act. I’m pro-life. I think you probably know that. And I would like to think we could at least get consensus in this country that taxpayers shouldn’t be funding abortions. That the government shouldn’t be forcing people to conduct procedures, especially health-care workers, against their own conscience.

Our First Amendment is the right of conscience, religious freedom. Yet our own government today, particularly in California, is violating that right and not allowing people to protect their conscience rights, whether they’re Catholic hospitals or doctors or nurses. Tomorrow we’re bringing the Conscience Protection Act to the floor and passing it. It’s Diane Black’s bill. And it is to give those citizens in America who want to protect their conscience rights their ability to defend those rights. That is one thing we’re doing tomorrow to protect the conscience, because I believe we need to cultivate a culture of life. And at the very least, stop the government from violating our conscience rights.

Ryan would go on to make similar remarks the next day while speaking on behalf of the bill on the House floor, though this time he added that the “bill does not ban or restrict abortion in any way …. All it does is protect a person’s conscience.” 

As Rewire‘s Christine Grimaldi previously reported, the Conscience Protection Act would codify and expand on the Weldon Amendment. According to the Department of Health and Human Services (HHS), the amendment prohibits states that receive federal family planning funding from discriminating against any health care entity-including physicians, health-care professionals, hospitals, and insurance plans, “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”

The Weldon Amendment currently must be passed each year as part of annual appropriations bills.

Grimaldi noted that the act “would give health-care providers a private right of action to seek civil damages in court, should they face alleged coercion or discrimination stemming from their refusal to assist in abortion care.”

Ryan proposed similar conscience protections as part of his recently released health-care plan, though, as Grimaldi wrote, “the Conscience Protection Act goes a step further, allowing providers to sue not only for threats, but also for perceived threats.”

But those whom Ryan and his colleagues are claiming to defend already have protections that impede access to abortion care, according to critics of the measure.

Ryan, for example, suggested in both his CNN appearance and his House floor speech the next day that California’s requirement that insurance plans must cover elective abortions under “basic health services” violates “religious freedom.” But a June investigation by the HHS Office for Civil Rights into whether California’s requirement violated the Weldon Amendment rejected similar complaints by anti-choice group Alliance Defending Freedom.

“Let’s be very clear—right now, current law says that hospitals, insurers, and doctors may refuse to perform an abortion or provide coverage for abortion, which already greatly limits women’s access to legal procedures,” said Rep. Jan Schakowsky (D-IL) Wednesday, speaking after Ryan on the House floor during remarks before the Conscience Protection Act passed.

“More importantly, when a woman’s health is in danger, providers would not be required to act to protect the health of that mother. This bill would allow them to refuse to … facilitate or make arrangements for abortion if they have a moral objection to it,” continued Schakowsky. “They could also refuse to provide transportation to another hospital if a woman is in distress if that hospital provides abortions.”

Debra L. Ness, president of the National Partnership for Women & Families, explained in a statement following the passage of the legislation in the House that the measure is about blocking access to abortion. “The Conscience Protection Act is dangerous, discriminatory legislation designed to block women’s access to abortion care,” said Ness.

“For example, a hospital could rely on the Conscience Protection Act to turn away a woman in an emergency situation who needs an abortion or refuse to provide a woman information about her treatment options. This legislation is a license for providers to discriminate against women and undermine their access to essential, constitutionally protected health care,” Ness said.

News Human Rights

Lawsuit: Religious Groups Are Denying Abortion Care to Teen Refugees

Nicole Knight Shine

The suit accuses the federal government of paying millions to religious grantees that refuse to provide unaccompanied minors with legally required reproductive health services.

Two years ago, 17-year-old Rosa was raped as she fled north from her home country in Central America to the United States. Placed in a Catholic shelter in Florida, the teen learned she was pregnant, and told shelter officials that if she couldn’t end the pregnancy, she’d kill herself. She was hospitalized for suicidal thoughts. Upon her release, the facility in which she’d been originally placed rejected her because of her desire for an abortion, according to a federal lawsuit filed Friday. So did another. Both, reads the lawsuit, were federal contractors paid to care for unaccompanied minors like Rosa.

Rosa’s story is one in a series sketched out in a 16-page complaint brought by the American Civil Liberties Union (ACLU) against the U.S. Department of Health and Human Services (HHS). The suit accuses the federal government of paying millions to religious grantees—including nearly $20 million over two years to the U.S. Conference of Catholic Bishops (USCCB)—that refuse to provide unaccompanied minors with legally required reproductive health services, including contraception and abortion. The grantees are paid by the federal Office of Refugee Resettlement (ORR) to house and care for young refugees.

The lawsuit, brought in U.S. District Court in San Francisco, amounts to a fresh test of the degree to which Catholic organizations and other faith-based groups can claim exemptions from federal laws and regulations on religious grounds.

“Religious liberties do not include the ability to impose your beliefs on a vulnerable population and deny them legal health care,” said Jennifer Chou, attorney with the ACLU of Northern California, in a phone interview with Rewire. “The government is delegating responsibility … to these religiously affiliated organizations who are then not acting in the best interest of these young people.”

Mark Weber, a spokesperson for the HHS, which includes the ORR, told Rewire via email that the agency cannot comment on pending litigation.

Escaping turmoil and abuse in their home countries, young refugees—predominantly from Central America—are fleeing to the United States, with 33,726 arriving in 2015, down from 57,496 the year before. About one-third are girls. As many as eight in ten girls and women who cross the border are sexually assaulted; it is unknown how many arrive in need of abortion care.

The federal ORR places unaccompanied minors with organizations that are paid to offer temporary shelter and a range of services, including reproductive health care, while the youths’ applications for asylum are pending. But documents the ACLU obtained indicate that some groups are withholding that health care on religious grounds and rejecting youths who request abortion care.

The 1997 “Flores agreement” and ORR’s contracts with grantees, which the ACLU cites in its lawsuit, require referrals to “medical care providers who offer pregnant [unaccompanied immigrant minors] the opportunity to be provided information and counseling regarding prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination.”

In 2016, the federal government awarded 56 grants to 30 organizations to provide care to unaccompanied minors, including 11 that the ACLU claims impose religious restrictions on reproductive health care.

In one case, ORR officials struggled to find accommodations for 14-year-old Maria, who wanted to end her pregnancy, according to the complaint. An ORR official wrote, according to a document the ACLU obtained, that the agency would have liked to transfer Maria to Florida to be near family, but “both of the shelters in Florida are faith-based and will not take the child to have this procedure,” meaning an abortion.

In another, the complaint reads, 16-year-old Zoe was placed with Youth for Tomorrow, a faith-based shelter in Virginia, where she learned she was pregnant. She asked for abortion counseling, which was delayed nearly two weeks, the complaint says. Learning of her decision to end the pregnancy, Youth for Tomorrow asked to transfer Zoe elsewhere because of its abortion prohibition, even though Zoe said she was happy at the shelter.

For vulnerable youths, such transfers represent a form of “secondary trauma,” according to the ACLU’s Chou.

“These women have already endured so much,” she told Rewire. “The process of transferring these youths from shelter to shelter tears them away from their only existing support system in the U.S.”

Federal officials, according to the complaint, were aware that the religious grantees would withhold abortion referrals. In one case, the Archdiocese of Galveston-Houston was awarded more than $8 million between 2013 and 2016, although it stated in its grant application that rape survivors wouldn’t be offered abortion care, but instead permitted to “process the trauma of the rape while also exploring the decision of whether to keep the baby or plan an adoption.”

The lawsuit also claims that a contract with the U.S. Conference of Catholic Bishops included language requiring unaccompanied minors who were pregnant to be given information and counseling about pregnancy termination, but the ORR removed that language after the USCCB complained.

The USCCB did not respond to Rewire‘s request for comment. But in a letter last year to the ORR, the USCCB and five religious groups, including some ORR grantees, wrote they could not facilitate health-care services for unaccompanied minors that run contrary to their beliefs.

The lawsuit is the second the ACLU has filed recently against the federal government over religious privileges.

Last month, the ACLU filed a Freedom of Information Act suit demanding that the federal Centers for Medicare & Medicaid Services release complaints against federally funded Catholic hospitals, where patients have reported being denied emergency medical care in violation of federal law.

In 2009, the ACLU also sued the federal government for allowing USCCB to impose religious restrictions on a taxpayer-funded reproductive health program for trafficking survivors. In 2012, a district court ruled in the ACLU’s favor, and the government appealed. The First Circuit Court of Appeal later dismissed the case as “moot” because the government did not renew USCCB’s contract.