Did a Handmaid’s Court Just Sentence Red State Women to Die?

Will excluding pregnant women (but not their fetuses) from EMTALA be the proverbial straw that breaks the back of the 38-year-long GOP scam?

Ronald Reagan’s strategy to kill an early Medicare For All campaign just came back to haunt America’s pregnant women, particularly those without insurance or a fat bank account who live in Republican-controlled states.

By putting fetuses at an equal footing with pregnant people, this bizarre decision will cause American women to die. As a result, it could signal a turning point in our national discussions about both abortion and healthcare in general.

First, the backstory.

While the 1980s saw a major swing to the right in American politics with the neoliberal Reagan Revolution, there was still a large part of the population that held to the values of the New Deal and Great Society. Teddy Roosevelt, Franklin Roosevelt, Harry Truman, and John Kennedy had all proposed or introduced single-payer healthcare programs, and while none had passed, many Americans were still enthusiastic about the idea.

On the other hand, Republicans and the Reagan administration were committed to not just preventing an expansion of programs like Medicare and Medicaid, passed in the 1960s by the Johnson administration, but to actually cutting back the federal money spent for healthcare.

This was, they said, necessary to pay for, in part, Reagan’s massive 2.9-percent-of-GDP tax cut for the morbidly rich (which is still with us, costing hundreds of billions every year; tens of trillions in today’s dollars added to the national debt since it was put into place).

As The Journal of Public Health Policy noted in a 1981 article titled Reagan Administration Health Policy:

“Reagan Administration health policy is driven by its economic strategy. Major reductions in nearly all health programs are proposed. … A major shift in responsibility for program administration from the federal government to state governments is proposed. …

“To achieve its overall spending objectives, the Reagan Administration has proposed major reductions in funding for health programs. Those programs serving the poor are the hardest hit in the budget. … Prevention programs are also hard hit. … Investments in future knowledge is also sharply curtailed. … Support for health professions education would also be drastically cut. …

“Virtually no justification has accompanied these budgetary reductions, other than the general claim that they are necessary as part of an overall economic policy.”

But Reagan hit a bump in the road when a major national “patient dumping” scandal was exposed by The New York Times and other newspapers in 1985 and 1986. Poor and uninsured patients were being refused care by for-profit hospitals or being dumped, once stabilized, onto county hospitals that were groaning under the burden.

The story went from The Times to papers across the country, and from there to radio and television. Americans were outraged, forcing Congress to act.

The solution became part of a 1986 law Senator Ted Kennedy helped to write that most Americans today know of as COBRA, which guarantees employees the right to hang onto their employer-provided health insurance for a short while after losing their employment.

The hospital provision in that legislation was called the Emergency Medical Treatment and Labor Act (EMTALA), and it requires hospitals to provide emergency care to everybody, no matter their ability to pay.

EMTALA, passed by a Democratic House and Republican Senate, didn’t work out as Kennedy hoped: it took the pressure off Reagan and Congress to do anything about the growing clamor for a national healthcare program.

It’s been used by most Republican presidential candidates in the years since then as a rationalization for opposing any sort of a national healthcare program.

As The New York Times noted in 2016:

“Republican politicians have long used the existence of this law as an argument against hastily expanding health insurance coverage when they have objected to a policy proposal’s details.”

For example, as George W. Bush, who put the Medicare Advantage scam into law, said:

“Let me talk about health care, since it's fresh on my mind. … The immediate goal is to make sure there are more people on private insurance plans. I mean, people have access to health care in America. After all, you just go to an emergency room.”

Or as Mitt Romney, when running for president, told a New Hampshire audience:

“Federal law requires that hospitals treat people whether or not they can pay. So someone [who] doesn’t have health insurance — they can go to the hospital and get free care.”

But this week we learned, courtesy of three Republican-appointed judges on the Fifth Circuit Court of Appeals, that the requirement for life-saving care we’d all taken for granted since 1986 fully applies to everybody in America, even tourists and “illegals,” except pregnant women.

Seriously.

When the Supreme Court handed down their Dobbs decision, the Biden administration sent out a memo to hospitals all across the country explaining that EMTALA requires hospital emergency rooms to provide abortions in every state in the union, regardless of their abortion laws, when a pregnancy is endangering the life of a pregnant woman.

Texas Attorney General Ken Paxton, arguably one of the most bizarre and corrupt politicians in the country, immediately sued HHS Secretary Xavier Becerra in federal court, essentially demanding that pregnant women have an equal lifesaving priority with their fetuses.

And the three white male Republican judges on the Fifth Circuit agreed with Paxton. 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.

In their ruling, they wrote:

“EMTALA refers to patients as “individuals”” throughout. Citing the Dictionary Act, HHS claims that the word “individual” does not include the “fetus.” The Dictionary Act defines “individual” as including “every infant member of the species homo sapiens who is born alive at any stage of development.””

So, therefore, what’s really at stake here, in the minds of these judges, is a sort of Sophie’s Choice between the full rights to healthcare and the survival it can provide to both mom and the fetus…er…“child”:

“We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations.”

The decision has lit up the Internet as well as Substack. Lucian K. Trescott IV called it “The Handmaid’s Court,” adding:

“Yes, you read that right:  Three justices on the Fifth Circuit, one a Bush appointee and two appointed by Donald Trump, have essentially ruled that the Texas law banning abortions has supremacy over a federal law protecting the life of a pregnant mother if an abortion is deemed medically necessary to save her life.”

Jessica Valenti was trenchant:

“How many more ways can they make it clear that they want us dead? And I mean that literally. As I wrote in 2022, it’s not just that Republican lawmakers and the anti-abortion movement see women dying as an unfortunate but acceptable consequence of making abortion illegal. To them, the most noble thing a pregnant woman can do is die so that a fetus can live. 

“There’s a reason that anti-choice groups have spent the last year and a half valorizing pregnant women who decline cancer treatment or other medical care. In part, they’re spreading these stories because they know maternal death rates are rising in the wake of Roe’s demise—they want to turn horror stories into martyrdom success stories. They need to make our deaths more palatable. 

“But this goes beyond political strategy: To them, women dying in pregnancy isn’t collateral damage—it’s just our job.” [Emphasis hers]

Jill Filipovic wrote this morning, in a piece bluntly titled Punish, Torture, Kill:

“Earlier this week, an all-male panel of the Fifth Circuit Court of Appeals held that emergency rooms are not required to perform life-saving abortions for women who show up having medical emergencies.”

Ken Paxton, his state of Texas, and the national Republican Party are now the dog that caught the car.

Governments in both Ireland and Poland were nearly overturned when those nations’ anti-abortion laws were so strict that they led to the death of young women suffering complications from pregnancy. If this decision by the nation’s most Republican appeals court stands, American women will also die.

When that happens, particularly if it’s in the run-up to the 2024 elections, it could have profound political implications. It will make real for voters — especially those who were only marginally paying attention — the brutality and misogyny intrinsic to the GOP abortion bans that have now been instituted in nearly every Red state in America.

Reagan’s “cost-free” strategy, designed to pay for tax cuts for the morbidly rich, succeeded in postponing a much-needed national discussion about joining the rest of the developed world with a Medicare For All type program, and has given Republican politicians a convenient place to hide, policy-wise, when healthcare issues come up.

However, putting pregnant women and their fetuses at the same priority for care under EMTALA could well be the proverbial straw that breaks the back of their 38-year-long scam. It could open the door to conversations and legislation not just around abortion but around the overall issue of how healthcare is handled and paid for in America.

Which is why it’s so important for all of us to share far and wide this outrageous story of Republican overreach in their campaign to return America’s women to the state of subservience they experienced before the 1973 Roe v Wade decision.

Pass it along.