Patients without Borders: Extralegal Deportation by Hospitals

Abstract

Federal law requires hospitals to treat patients in need of emergency medical care regardless of whether or not they are lawfully present in the United States. And hospitals are prohibited from discharging those patients unless and until there is an assurance that their continuing medical needs will be met by another facility. Yet the federal government does not provide funding for the care of undocumented migrants after their need for emergency care has passed but their need for ongoing medical treatment lingers.

Several hospitals have made the decision to privately repatriate, at the hospitals’ expense, undocumented patients needing long-term medical care. That is, the hospitals have hired transport to return these medically needy individuals to the care and custody of their native countries. Yet there is no legal authority for hospitals to enforce federal immigration law in this way. To the contrary, repatriation is subject to challenge on due process, equal protection, and preemption grounds. It may also be the basis for civil tort actions, statutory claims, and criminal charges.

There is no question that hospitals face significant problems in treating undocumented migrants with long-term medical needs. The answer, however, cannot be private action that amounts to institutionalized vigilantism. There must be a public solution. I propose a new administrative process whereby hospitals can call upon the Department of Homeland Security to initiate the expedited removal and transfer of medically needy undocumented migrants.

Keywords: Immigration Law, Health Care Reform

JEL Classification: K19, K39, K42