Texas sues to block a Biden rule on emergency abortions

Erik Larson
Bloomberg

Texas sued to block a new Biden administration rule that emergency abortions for medical reasons in hospitals take priority over state bans on such procedures, the latest legal clash triggered by the US Supreme Court’s overturning of Roe v. Wade.

The requirement announced last week to protect pregnant patients facing serious medical complications “seeks to transform every emergency room in the country into a walk-in abortion clinic,” Texas Attorney General Ken Paxton said in a federal lawsuit.

Ken Paxton, Texas attorney general, speaks during a news conference outside the Supreme Court in Washington, D.C., U.S., on Monday, Sept. 9, 2019.

The US Department of Health and Human Services issued the rule following a Biden directive to address concerns that emergency-room care might be limited after the nation’s top court ended the constitutional right to abortion. All states allow doctors to terminate a pregnancy if the mother’s life is at risk, but questions remain about what constitutes a life-or-death situation.

HHS is “flouting the Supreme Court’s ruling before the ink is dry,” Paxton, a Republican, claims in the suit, filed Thursday in Lubbock, Texas. The rule “forces hospitals and doctors to commit crimes and risk their licensure under Texas law.”

The White House didn’t immediately respond to a message seeking comment. HHS also didn’t immediately respond to a request for comment.

HHS issued the rule under the Emergency Medical Treatment and Labor Act, or EMTALA, saying the law requires that physicians’ judgment prevail to protect the health of women in labor and with conditions such as ectopic pregnancies or dangerously high blood pressure.

To ensure hospitals and physicians comply, HHS said it will fine them and block payments from Medicare and Medicaid if physicians or hospitals don’t comply. Those in violation face fines ranging from about $60,000 to $120,000.

Paxton says EMTALA was never intended to mandate any medical procedure and cannot take precedent over state laws. Texas argues the statute was only intended to ensure that all patients are given the same standard of care, regardless of their ability to pay. That standard is set by local rules, according to the suit.

“Federal appellate courts have confirmed that EMTALA confers no right to any specific treatment and does not operate as federal oversight on the practice of medicine,” Paxton claims. “The standard of medical care is determined by the state and the community in which the treatment took place.”

Carl Tobias, a professor at the University of Richmond School of Law, said the case may come down to how a judge interprets the intent of Congress when it passed the law.

“Maybe Congress didn’t intend anything in regards to abortion,” he said. “But it’s hard to tell what a court might do.”

The case is State of Texas v. Becerra; 5:22-cv-00185; US District Court for the Northern District of Texas (Lubbock).

---

With assistance from Courtney Rozen.