A legal battle has broken out between the Biden administration and Texas Attorney General Ken Paxton, in the wake of the Supreme Court’s June 24 Dobbs v. Jackson Women’s Health Organization decision striking down Roe v. Wade, after nearly 50 years of jurisprudence around abortion rights.
On Monday, July 11, Secretary of Health and Human Services Xavier Becerra followed up on President Joe Biden’s July 8 executive order on reproductive services, announcing new guidance and communication around emergency abortion services, emphasizing that life-saving and health-saving abortion care is protected under the federal Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986. The guidance that HHS had issued on July 11 was itself a follow-up action to President Joe Biden’s executive order of July 8 on abortion care.
But on Thursday, July 14, Texas Attorney General Ken Paxton sued the Biden administration Thursday in federal court, arguing that HHS’s guidance is unlawful.
As NBC News’s Dareh Gregorian wrote on Thursday, “The federal suit, which was filed in U.S. District Court for Northern Texas, contends the directive from the Department of Health and Human Services is an ‘attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic’ and should be blocked.” She quoted Paxton’s statement that “This administration has a hard time following the law, and now they are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions. I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”
HHS’s July 11 guidance states that EMTALA protects providers offering emergency abortion services, even if a state law outlaws it. But Paxton’s federal suit, which was filed in U.S. District Court for Northern Texas, contends the directive from the Department of Health and Human Services is an "attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic" and should be blocked.
HHS’s guidance had included the statement that "Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features," the agency document said. Becerra had said in a statement Monday that, “Under the law, no matter where you live, women have the right to emergency care — including abortion care.” He said his agency was "reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care."
The heart of the case brought forward at Texas Attorney General Paxton lies in paragraphs 40 through 42 of the lawsuit. Those paragraphs read thus: “Texas is injured because the Abortion Mandate purports to preempt its laws. This violates Texas’s “sovereign interest in the power to create and enforce a legal code.” Texas v. United States, 809 F.3d 134, 153 (5th Cir. 2015) (quotation omitted). The sovereign right to enforce its criminal laws is the epitome of Texas’s police power. Furthermore, the State of Texas operates hospitals that participate in Medicare. The EMTALA Guidance explicitly threatens the Medicare provider agreements for any healthcare providers that refuse to abide by the Abortion Mandate.12 These hospitals are now threatened with having to choose between violating state law under threat of criminal penalty or jeopardizing their ability to participate in Medicaid. By requiring Medicare-participating hospitals, including hospitals operated by the State of Texas, to provide abortions when the life of the mother is not in danger, the Abortion Mandate directly infringes on Texas’s sovereign and quasi-sovereign authority.”
In response to Paxton’s announcement of his filing suit against the Administration, White House Press Secretary Karine Jean-Pierre released the following statement: “This is yet another example of an extreme and radical Republican elected official. It is unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected under U.S. law.”
The unfolding legal situation is already causing concern and confusion among clinicians and patient care organizations. In their July 14 article reporting on the Paxton’s announcement of his lawsuit, The Washington Post’s Amy Forliti and Geoff Mulvihill wrote that “The legal wrangling is causing concern for doctors. Dr. Ghazaleh Moayedi, a Dallas-based OB/GYN and former abortion provider, said emergency departments may face these situations frequently — when patients experience miscarriages or ectopic pregnancies, or when a woman’s water breaks before a fetus is viable.” And they quoted Dr. Moayedi as saying that “Physicians shouldn’t be forced to call a lawyer, call an ethicist, call another lawyer, call a hospital administrator while a patient is actively dying. It is unconscionable,” she told the Post.
And, in their July 14 report on the lawsuit’s announcement, The New York Times’s J. David Goodman and Sheryl Gay Stolberg wrote that “The suit lands amid active discussion among doctors and hospital lawyers across Texas — and other states that have banned all or most abortions — about when the procedure might be permitted in emergencies. Texas’ law allows for exceptions when an abortion would save the pregnant patient’s life or prevent ‘substantial impairment of major bodily function’ — the types of situations that the federal guidance is focused on, although it leaves room for interpretation.”
Further, they wrote, “Mr. Paxton has turned frequently to the courts to express his opposition to Mr. Biden’s policies; The Texas Tribune reported in April that he had brought 11 immigration-related suits against the administration. He has also filed or joined a series of suits related to Covid-19 policies, including the administration’s effort to mandate mask wearing and vaccination.”
