Roberts Asks DOJ Lawyer If They Would Require Religious Hospitals With ERs To Perform Abortions

5 months ago

Chief Justice John Roberts questioned Solicitor General of the United States Elizabeth Prelogar during Wednesday’s oral arguments in Moyle v. United States & Idaho v. United States.

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Transcript

00:00 Counsel, your friend on the other side said that your position would require religiously

00:07 affiliated hospitals with emergency rooms to perform abortions.

00:11 Was he right?

00:12 No, my friend was wrong.

00:13 There are federal conscience protections that apply at the entity level to hospitals as

00:17 well.

00:18 The key provisions are in the Weldon Amendment and also Coates' No, although that depends

00:22 on the residency program of a particular hospital.

00:24 Now, HHS said in a 2008 rulemaking on conscience protections that it had never come across

00:29 a hospital that had a blanket objection to providing life-preserving and health-preserving

00:34 pregnancy termination care.

00:36 But if a hospital had that kind of objection, and HHS recently informed me they still have

00:39 not come across that hospital, that would be honored vis-a-vis HHS's enforcement ability.

00:44 You said that applies at the entity level.

00:47 Can individual doctors in the emergency room, do they have a conscience exemption?

00:51 Oh, yes.

00:52 Yes, they're protected under the church amendments principally.

00:54 And our position is that EMTALA does not override either set of conscience protections.

00:58 So if an individual doctor has a conscience objection to providing pregnancy termination,

01:03 EMTALA itself imposes obligations at the entity level, and the hospital should have plans

01:07 in place to honor the individual doctor's conscience objection while ensuring appropriate

01:11 staffing for emergency care.

01:13 Does that mean that there must be somebody in the emergency room that can provide an

01:18 abortion?

01:19 What if there are two doctors, three doctors, and they all have a conscience exemption?

01:23 No, in that circumstance, EMTALA could not override those individual doctors' conscience

01:28 protections, but my understanding is that as a matter of best practice, because hospitals

01:32 want to be able to provide emergency care, they do things like ask doctors to articulate

01:36 their objections in advance so that that can be taken into account in making staffing decisions

01:40 and who's on call.

01:42 Hospitals have a lot of plans in place for these kinds of contingencies.

01:45 Are you saying that there must be somebody available and on call in a hospital of that

01:51 sort?

01:52 The conditions of participation for Medicare require hospitals to be appropriately staffed

01:56 to provide emergency treatment.

01:58 Now in a situation where a hospital hasn't done that and it doesn't have anyone on hand

02:02 who can provide care, you know, maybe all of the doctors called in sick that day and

02:05 there's just literally no one in the emergency room, or in this case, if everyone had a conscience

02:10 objection, then the hospital would not be able to provide the care.

02:13 But there are conditions of participation that are meant to ensure that there is good

02:16 governance of hospitals and organization to account for these situations.

02:19 When you say the consequence of them not being able to provide the care would be what?

02:24 In that circumstance, I think they would likely be out of compliance with the conditions of

02:27 participation that require them to be appropriately staffed.

02:30 But if the question is, could you force an individual doctor to step in then over a conscience

02:35 objection, the answer is no.

02:36 And I want to be really clear about that.

02:37 We don't understand EMTALA to displace it.

02:41 The question is whether or not they must have available someone who can comply the procedures

02:45 required by EMTALA.

02:47 And what would be the consequence if they didn't?

02:49 Would it be eventual termination of their participation in Medicare?

02:53 That's right.

02:54 If the hospital was continually disobeying the requirement to have in place sufficient

02:59 personnel to run their emergency room, then I imagine that HHS would, through enforcement

03:03 action, work with that hospital to try to bring it into compliance.

03:06 And if the hospital ultimately is just leaving itself in a position where it can never provide

03:10 care, then it would terminate the Medicare funding agreement.

Roberts Asks DOJ Lawyer If They Would Require Religious Hospitals With ERs To Perform Abortions

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