Federal Judge Strikes Blow to Biden’s Abortion Coercion Efforts in Texas

COMMENTARY Life

Federal Judge Strikes Blow to Biden’s Abortion Coercion Efforts in Texas

Aug 29, 2022 7 min read
COMMENTARY BY
Sarah Parshall Perry

Senior Legal Fellow, Meese Center

Sarah Parshall Perry is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Texas and the other plaintiffs argued that the Biden administration’s mandate unlawfully requires abortions in situations where Texas outlaws them. Studio 642 / Getty Images

Key Takeaways

A federal district court in Texas issued an order blocking the Biden administration’s attempt to force the state’s emergency room doctors to perform abortions.

The law does not mandate, direct, approve, or even suggest the provision of any specific treatment. It says nothing about requiring abortion.

The Texas law also makes clear that removal of an ectopic pregnancy is not an abortion.

A federal district court in Texas issued an order Wednesday blocking the Biden administration’s attempt to force the state’s emergency room doctors to perform abortions—regardless of whether doing so violates their religious beliefs.

Judge James Wesley Hendrix determined that the state of Texas and two groups of pro-life physicians were likely to prevail in their case against the U.S. Department of Health and Human Services.

The outcome is a welcome victory for states such as Texas that pass pro-life laws but find themselves in a game of whack-a-mole with an administration desperate to protect “reproductive rights” in the wake of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization.

“Emergency room physicians can, and do, treat ectopic pregnancies and other life-threatening conditions,” Denise Harle, senior counsel and director of Alliance Defending Freedom’s Center for Life, said. “Elective abortion is not lifesaving care—it ends the life of the unborn—and the government can’t force doctors to perform procedures that violate their conscience and religious beliefs.”

Hendrix issued his order in a case called Texas et al., v. Xavier Becerra, et al.

The state of Texas, together with the American Association of Pro-Life Obstetricians and Gynecologists and Christian Medical & Dental Associations, sued the Biden administration to challenge its abortion mandate in July, which was based creatively on the Emergency Medical Treatment and Labor Act, or EMTALA.

Texas and the other plaintiffs argued that the Biden administration’s mandate unlawfully requires abortions in situations where Texas outlaws them under its own law, the Texas Human Life Protection Act.

Congress enacted EMTALA in 1986 to ensure public access to emergency services regardless of whether an individual could pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals offering emergency services to provide a medical screening examination or treatment for an emergency medical condition, including active labor, regardless of financial ability.

Hospitals are required to provide stabilizing treatment for patients with what are called emergency medical conditions. If a Medicare-participating hospital is unable to stabilize a patient, or if the patient requests, the hospital transfers the patient to another facility.

The Emergency Medical Treatment and Labor Act defines the term “emergency medical condition” to mean:

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

U.S. Health and Human Services Secretary Xavier Becerra issued federal guidance in July, arguing that the 1986 law “protects [the] clinical judgment and the action that [doctors] take to provide stabilizing medical treatment to [their] pregnant patients,” regardless of any abortion restriction in their state.

Simple enough, right?

But then Becerra stretched the limits of law and common sense with this reading of the law on emergency medical treatment, saying:

[If] a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.

That interpretation means that under the HHS mandate, the federal government’s own definition of “emergency medical condition” would preempt any state definition that is more narrowly tailored. It also means that elective abortions would qualify as “emergency medical conditions.”

Is this a proper reading of the Emergency Medical Treatment and Labor Act? Far from it. It’s a poorly disguised attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.

How do we know this? Because EMTALA requires health care providers (more precisely, federally funded Medicare-participating hospitals) to provide stabilizing treatment of emergency medical conditions that pose serious jeopardy to patients, including the pregnant woman’s “unborn child” (a phrase used four times in the law).

The law does not mandate, direct, approve, or even suggest the provision of any specific treatment. It says nothing about requiring abortion.

Hendrix pointed this out in his order granting the plaintiffs’ requested relief to Texas and the two medical groups, stating that Becerra’s guidance from HHS:

goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The guidance was thus unauthorized.

The Emergency Medical Treatment and Labor Act, Hendrix highlighted, explicitly “protects both mothers and unborn children,” something the HHS guidance ignored.

The judge summarized:

[The guidance] discards the requirement to consider the welfare of unborn children when determining how to stabilize a pregnant woman; it claims to preempt state laws notwithstanding explicit provisions to the contrary; and it impermissibly interferes with the practice of medicine in violation of the Medicare Act. Because HHS’s guidance is a statement of policy that establishes or changes a substantive legal standard, it likewise was subject to notice-and-comment requirements—requirements unfulfilled here.

Attorneys with Alliance Defending Freedom, which represented the American Association of Pro-Life Obstetricians and Gynecologists and Christian Medical & Dental Associations in the case, celebrated the victory.

“We’re pleased to see the court halt the administration’s attempt to flagrantly disregard the legislative and democratic process,” said Ryan Bangert, a senior counsel with Alliance Defending Freedom who argued the case on behalf of the pro-life OB-GYNs, “and we’ll continue to defend those in the medical profession who wish to respect and save lives, not take them.”

Unsurprisingly, though, the White House painted the outcome in Texas as a dire one, with press secretary Karine Jean-Pierre calling the judge’s decision “a blow to Texans.”

“Texas filed this suit to ensure that it can block medical providers from providing lifesaving and health-preserving care,” Jean-Pierre said. “Because of this decision, women in Texas may now be denied this vital care—even for conditions like severe hemorrhaging or life-threatening hypertension.”

This, of course, is a patent falsehood, since the Texas law that the Department of Health and Human Services contends conflicts with the Emergency Medical Treatment and Labor Act contains an exception for a “life-threatening physical condition … [one that] places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

The Texas law also makes clear that removal of an ectopic pregnancy is not an abortion.

In a case similar to the one in Texas, the Justice Department filed suit Aug. 2 against the state of Idaho, hoping to undermine its new law prohibiting most abortions by claiming that the state law conflicts with EMTALA and medical treatment for pregnant women in emergency rooms.

U.S. District Judge B. Lynn Winmill found Wednesday that Idaho’s law conflicts with the federal law because it bans abortions in nearly all circumstances.

Idaho’s law does, however, allow a doctor to raise as an affirmative defense in a criminal case that he or she determined that an abortion was necessary to save the patient’s life.

Disagreeing, Winmill noted that the Idaho law puts doctors to the “impossible task of attempting to simultaneously comply with both federal and state law” and that “state law must yield to federal law when it’s impossible to comply with both.”

Scholars also have noted that if Idaho hospital administrators believe they can’t comply with both state and federal law, they simply could decline the Medicare funding that subjects them to the Emergency Medical Treatment and Labor Act in the first place.

Idaho likely will appeal Winmill’s decision to the U.S. Court of Appeals for the 9th Circuit.

This piece originally appeared in The Daily Signal