Protesters hold up signs at a protest outside the Texas State Capitol on May 29, 2021, in Austin, Texas. Thousands of protesters came out in response to a new bill outlawing abortions after a cardiac activity is detected signed by Texas Gov. Greg Abbot. (Sergio Flores/Getty Images)
WASHINGTON — A federal district judge has granted the Texas attorney general’s request to temporarily block guidance from the federal government that says federal law protects health care providers who perform abortions to save the life or health of pregnant patients in emergency situations.
Judge James Wesley Hendrix wrote the U.S. Department of Health and Human Services guidance from July “goes well beyond” the text of the federal law, which he wrote “protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict.”
The preliminary injunction, granted late Tuesday, applies only to Texas, members of the American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical & Dental Associations. But the implications reverberated nationally.
White House press secretary Karine Jean-Pierre said in a statement the Biden administration would “continue to push to require hospitals to provide life-saving and health-preserving reproductive care.”
“Because of this decision, women in Texas may now be denied this vital care — even for conditions like severe hemorrhaging or life-threatening hypertension,” Jean-Pierre said. “It’s wrong, it’s backwards, and women may die as a result.”
Hendrix, who was appointed by former President Donald Trump, wrote that Texas state law and the federal law overlap “to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy.”
But in the wake of the U.S. Supreme Court’s decision to end the nationwide, constitutional right to an abortion, Hendrix wrote the U.S. Department of Health and Human Services issued guidance “purporting to remind providers of their existing … obligations to provide abortions regardless of state law.”
Hendrix wrote that the guidance from the federal government was “unauthorized” and that HHS issued the guidance “without the required opportunity for public comment.”
Federal law under the Emergency Medical Treatment and Active Labor Act
The Texas case, as well as a separate case the U.S. Department of Justice filed against Idaho, revolve around the Emergency Medical Treatment and Active Labor Act.
The 1986 law requires hospital emergency departments to assess patients to determine if they have an emergency medical condition, and if they do, health care providers must provide stabilizing treatment or transfer the patient if the hospital is unable to help them.
EMTALA defines an emergency medical condition as something that manifests with “acute symptoms of sufficient severity (including severe pain),” where a lack of immediate medical attention could place the patient “(or, with respect to a pregnant woman, the health of the woman or her unborn child)” in serious jeopardy, cause serious impairment to bodily functions, or serious dysfunction of any bodily function or part.
“Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care,” Becerra continued. “Protecting both patients and providers is a top priority, particularly in this moment.”
Texas lawsuit argues EMTALA doesn’t guarantee access to abortion
Texas Attorney General Ken Paxton filed a lawsuit in the U.S. District Court for the Northern District of Texas Lubbock Division a few days later arguing EMTALA doesn’t guarantee access to abortion.
“On the contrary, EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child,” Paxton wrote. “It is obvious that abortion does not preserve the life or health of an unborn child.”
The U.S. Department of Justice filed a separate lawsuit against Idaho earlier this month arguing one of its state laws on abortion, set to take effect Thursday, violated EMTALA.
The judge in that case is set to rule Wednesday.
The Idaho lawsuit is part of the Biden administration’s efforts to keep abortion legal in some circumstances after the U.S. Supreme Court overturned Roe v. Wade in June.
The judge in the Texas lawsuit wrote in the Tuesday preliminary injunction that when comparing EMTALA with Texas law, the federal law was “materially broader.”
Hendrix wrote that federal guidance on EMTALA said “abortion may be required for emergency medical conditions that are likely to become emergent,” while Texas state abortion law “requires the condition to be present.”
Federal guidance, Hendrix wrote, would “require an abortion when the health of the pregnant woman is in serious jeopardy” while the Texas state law “limits abortions to when the medical condition is life-threatening, and [Texas law] goes further to expressly limit the condition to a physical condition.”
Federal guidance “also indicates that EMTALA may require an abortion when an emergency medical condition ‘could … result in a serious impairment or dysfunction of bodily functions or any bodily organ’” while Texas law “by contrast, requires the life-threatening physical condition to pose a serious risk of substantial impairment of a major bodily function,” Hendrix wrote.
“So, in addition to requiring a physical threat to life, [Texas law] requires both a greater likelihood and a greater severity than the Guidance’s interpretation of EMTALA does,” he wrote.
In the 67-page decision, the judge gave an example of a pregnant woman arriving at an emergency department with a “pregnancy-related emergency medical condition where, if she carries the child to term, the child will live but a serious impairment of a bodily function will result.”
Hendrix wrote that terminating the pregnancy would allow the pregnant patient to “retain the bodily function.” He then asked what type of health care the pregnant patient should be allowed to have access to.
“The physician could (1) abort the child — prioritizing the health of the mother over the life of the child — despite independent EMTALA obligations to the child; or (2) keep the child in gestation and fail to stabilize the mother’s emergency medical condition, causing her to lose the function. EMTALA provides no answers to this dilemma,” Hendrix wrote.
In such a situation, he wrote, “doctors must” decide how to provide medical care “in accordance with state law.”
Hendrix then denied the federal government’s request to dismiss the case and granted the preliminary injunction for Texas as well as members of the American Association of Pro-Life Obstetricians and Gynecologists, and the Christian Medical & Dental Association.
That ruling specifically said the federal government may not enforce its EMTALA guidance on abortion access in emergency medical situations, or its interpretation that federal law supersedes Texas state law on the issue.
The Texas attorney general’s office, the American Association of Pro-Life Obstetricians and Gynecologists, and the Christian Medical & Dental Association didn’t return requests for comment.
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