After 'forcible rape,' another abortion restriction

By Jonathan Capehart

Oh, good grief. No sooner have I celebrated the Republican retreat on the gambit to make "forcible rape" -- whatever that meant -- one of the few exceptions for federal funding of abortions than a new, more dastardly threat to women's right to choose arises.

Under the guise of protecting hospitals, medical clinics and health workers from discrimination because they refuse to perform abortions, H.R. 358 would let them do so without fear of penalty. The "nondiscrimination on abortion" provision is part of the nine-page Protect Life Act, an amendment to last year's health-care law introduced by seven-term Rep. Joe Pitts (R-Pa.) on Jan. 20. In a copy of the manager's amendment I obtained from a source, the odious term "forcible rape" no longer appears. But here's the problem: If enacted this bill would trump the 25-year-old law that guarantees public access to emergency care, including abortions.

In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.

Since 1986, a patient with an emergency medical condition who goes to a hospital participating in Medicare must be treated. Such stabilizing treatment could include abortion care for pregnant women. If the hospital can't provide the requested treatment it must refer the patient to a hospital or medical facility that does.

The overly broad Pitts amendment would void this requirement for hospitals, which would be considered a "health care entity." Unlike the nebulous "forcible rape," the key definition here is clear: "an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan or any other kind of health care facility, organization, or plan." So, in contravention of EMTALA, hospitals would be allowed to refuse to provide abortion care or refer the patient to another hospital. Most troubling is that there are no exemptions -- not even if the life of the mother is at risk.

Abortion is an issue fraught with emotion. The decision to have one is among the most personal and wrenching a woman will ever have to make. That's why control over her body should rest in her hands, especially during a medical emergency. I'm not saying there should be no limits on when, how, where and why a woman can have an abortion. But her constitutional right to have one has been affirmed by the Supreme Court in Roe v. Wade and subsequent rulings. And if her life is at risk only the hardest of hearts would take that choice away from her. Unfortunately, the hard hearts now control the House. After sublimating their right-leaning social agenda in favor of a jobs agenda to wrest control from the Democrats in the midterms, they are picking up where they left off.