FederalState HouseTexas Sues Biden Administration Over Emergency Abortion Guidance

"No federal statute confers a right to abortion," Texas Attorney General Ken Paxton wrote in the state's lawsuit.
July 15, 2022
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Texas Attorney General Ken Paxton sued the Biden administration yesterday over new agency actions that he claims would steamroll Texas abortion laws.

“President Biden is flagrantly disregarding the legislative and democratic process — and flouting the Supreme Court’s ruling before the ink is dry — by having his appointed bureaucrats mandate that hospitals and emergency medicine physicians must perform abortions,” the attorney general wrote in the state’s lawsuit.

“But Defendants’ Abortion Mandate forces hospitals and doctors to commit crimes and risk their licensure under Texas law. The Emergency Medical Treatment and Labor Act (EMTALA) that Defendants cite as the basis for their Abortion Mandate does not authorize — and has never authorized — the federal government to compel healthcare providers to perform abortions.”

Previously, the 1973 Supreme Court decision Roe v. Wade held that the Constitution conferred a right to abortion before the point of fetal viability. When the Supreme Court overturned this decision in Dobbs v. Jackson, it returned the authority to regulate abortion to the various states.

The old Texas abortion ban formerly deemed unconstitutional regained immediate effect, and a new, more comprehensive ban on elective abortions will take effect 30 days after the Supreme Court issues its judgment in the case.

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After President Joe Biden promised action on June 24 and issued an executive order on July 8, the Centers for Medicare and Medicaid Services published a guidance document that said doctors must perform any abortion needed to stabilize and “emergency medical condition” under the EMTALA. This federal law requires hospitals to treat patients with emergency medical conditions, threatening civil penalties for violations.

“[I]f 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,” Department of Health and Human Services Secretary Xavier Becerra stated.

“And when 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.”

Texas law already allows abortions meant to save the mother’s life. The ban that will take effect thirty days after the Dobbs judgment also allows procedures meant to save the mother from substantial bodily impairment.

Every state abortion ban allows procedures meant to save the mother’s life, with many states — Texas included — explicitly noting ectopic pregnancies as one example of a life-threatening pregnancy condition where abortion is allowed.

Nonetheless, Paxton claims the EMTALA’s definition of “emergency medical condition” exceeds Texas law. According to the attorney general, this means Texas hospitals that participate in Medicare risk violating state law or jeopardizing their Medicaid funding.

“No federal statute confers a right to abortion. EMTALA is no different. It does not 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’s brief reads.

“It is obvious that abortion does not preserve the life or health of an unborn child.”

In addition to his claim that the new guidance would unlawfully preempt the Texas ban, Paxton says the Biden administration cloaked a new agency rule in a document purportedly meant to clarify existing rules.

Agencies are required to notify the public and allow a period of public comment before passing a new rule. By effecting real changes to the Medicaid system without going through this process, Paxton claims the federal government has made an end run around procedure.

In the same vein, Paxton argues that the executive branch also overstepped its constitutional bounds by issuing the guidance.

“The executive branch cannot impose conditions on spending that the Constitution would prohibit it from imposing directly because that authority belongs to Congress,” the lawsuit reads.

The federal government has not filed a response yet.

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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.