A federal judge on Tuesday, Aug. 23, blocked guidance from the Department of Health and Human Services (HHS) that had told patient care organization leaders that they must include abortion services to women in life-threatening or health-saving situations, under the federal Emergency Medical Treatment and Active Labor Act (EMTALA). The ruling by a judge in Texas sets up yet another potential conflict to be resolved by the U.S. Supreme Court, two months after the U.S. Supreme Court, on June 24, had struck down the 1973 Roe v. Wade decision; the Dobbs v. Jackson Women’s Health Organization decision this summer returned control over abortion rights to the individual states, many of which moved quickly to ban most or nearly all abortions. The ruling came six weeks after HHS had issued its guidance on July 11.
As CNN’s Chris Boyette and Tierney Sneed reported on Tuesday, “A federal judge in Texas has blocked Department of Health and Human Services guidance that medical providers who are required to provide emergency care to pregnant patients regardless of their ability to pay for it under a 1986 law must also provide abortion services in life-threatening or health-saving situations and will be protected if those actions violate state law. On Tuesday, U.S. District Court Judge James Wesley Hendrix ruled that the guidance, which cites the Emergency Medical Treatment and Active Labor Act (EMTALA), was unauthorized.’”
"That guidance 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," Hendrix wrote in his opinion granting a preliminary injunction against HHS enforcing the guidance in Texas or against members of the American Association of Pro-Life Obstetricians & Gynecologists or Christian Medical & Dental Associations.
"Under HHS's reading, if the doctor initially determines that the unborn child does not have an emergency medical condition, the doctor must then close his or her eyes to the unborn child's health for the remainder of the treatment. This directly conflicts with the doctor's ongoing duty to provide care for both the mother and the unborn child when stabilizing a pregnant woman," the judge said. "Because the doctor has a duty to both, EMTALA does not require the doctor to introduce an emergency medical condition to one in order to stabilize the other. Again, EMTALA does not say how to balance both interests. It leaves that determination to the doctor, who is bound by state law."
As Bloomberg Law’s Tina Davis wrote on Wednesday afternoon, “Texas filed the suit against the Department of Health and Human Services in July, challenging the position that emergency abortions for medical reasons take priority over state bans on such procedures. In a ruling late Tuesday, US District Judge James Wesley Hendrix, a Trump appointee, preliminarily halted enforcement of that measure in Texas. The rule -- issued under the Emergency Medical Treatment and Labor Act, or Emtala -- is one of the administration’s main executive responses in the aftermath of the US Supreme Court overturning the constitutional right to abortion. The Justice Department cited the rule in a separate lawsuit it brought against Idaho for its abortion restrictions.”
And Davis quoted White House Press Secretary Karine Jean-Pierre, who said in a statement following the ruling that “Texas filed this suit to ensure that it can block medical providers from providing life-saving and health-preserving 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. It’s wrong, it’s backwards, and women may die as a result.”
The decision only applies to providers in Texas; and, as the New York Post’s Joe Miller wrote on Wednesday, “Hendrix also ruled the guidance couldn’t be enforced against members of two national anti-abortion medical organizations, the American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical and Dental Associations. HHS issued the guidance July 11, weeks after the Supreme Court overturned Roe v. Wade and returned the issue of abortion to the states.”
The July 11 announcement by HHS Secretary Xavier Becerra, which Judge Hendrix had invalidated in Texas, had itself “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 Emergency Medical Treatment and Active Labor Act (EMTALA).” As we had reported on July 12, “The announcement, posted to the Department of Health and Human Services (HHS) website, began thus: ‘Today, the U.S. Department of Health and Human Services (HHS) announced new guidance and communication to ensure all patients — including pregnant women and others experiencing pregnancy loss — have access to the full rights and protections for emergency medical care afforded under the law. This announcement follows President Biden’s executive order on reproductive health issued Friday. HHS, through the Centers for Medicare & Medicaid Services (CMS), issued clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA) and reaffirmed that it protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations. In addition to the guidance, Secretary Xavier Becerra, in a letter to providers, made clear that this federal law preempts state law restricting access to abortion in emergency situations.’”
But Texas Attorney General Ken Paxton had sued almost immediately. As we reported on July 14, “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.’”
Bloomberg Law’s Davis noted that “The court ruled that the guidance ‘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,’ Hendrix wrote in a 67-page order. ‘Nor can it, in doing so, create a conflict with state law where one does not exist. The guidance was thus unauthorized.’ In addition, the judge said the agency ‘issued it without the required opportunity for public comment.’” She also shared quotes from both Ken Paxton and the Biden administration. Paxton stated after the ruling that “The court’s decision to side with Texas is a crucial step in preventing Joe Biden and his radical pro-abortion Administration from breaking the law and threatening our entire healthcare industry by withholding federal funds.” But the Biden administration stated that its rule was “reasonable and reasonably explained” and argued the guidance is needed to protect the lives of pregnant patients facing medical emergencies.