The Attorney General of Texas sued the U.S. Dept. of Health and Human Services on Thursday, claiming the agency’s effort to protect federal abortion access following the overturning of Roe v. Wade is an “attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.”
In the suit, which was filed in Texas district court, Texas Attorney General Ken Paxton accused President Biden of “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 is asking a Texas judge to rule that recent federal mandates and guidance issued to healthcare providers to protect abortion access are unconstitutional, claiming they are an overreach of federal law and conflict with Texas state law.
“The federal executive branch cannot achieve its unlawful policy outcomes by attempting to codify a federal right to abortion where none exists,” Paxton said in the filing.
Last week, President Biden issued an executive order, “Protecting Access to Reproductive Health Care Services,” that required HHS Secretary Xavier Becerra to submit a report to the President identifying steps to protect access to medication abortion, ensure emergency medical care for pregnant women and those experiencing pregnancy loss, protect access to contraception, to launch outreach regarding education on abortion access, and to convene volunteer lawyers.
In response, HHS Secretary Xavier Becerra on Monday sent a letter to healthcare providers stating that the Emergency Medical Treatment and Active Labor Act (EMTALA) provides federal protection for those who treat pregnant patients regardless of state laws. The Act requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, regardless of any state laws.
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The EMTALA, which is part of the Social Security Act, was enacted in 1986 to prevent “patient dumping,” or turning away patients who couldn’t pay. The Texas lawsuit argues that HHS is misapplying the EMTALA and that the Act does not mandate any specific treatment.
In Becerra’s letter, he directly addressed abortion and protections for providers who offer abortions.
“It is critical that providers know that a physician or other qualified medical personnel’s professional and legal duty to provide stabilizing medical treatment to a patient who presents to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit such treatment,” Becerra said in the letter.
The letter stated that what constitutes an emergency medical condition involving pregnant patients may include: ectopic pregnancy, complications of pregnancy loss, emergent hypertensive disorders such as preeclampsia, among others.
“Thus, 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,” Becerra said.
If physicians violate EMTALA, a hospital may lose its Medicare provider agreement and be forced to pay civil penalties, Becerra said.
The Centers for Medicaid and Medicare Services, which is also named in the suit, issued guidance on Monday that requires a provider to perform an abortion if that is the stabilizing treatment necessary to resolve an emergency medical condition. According to Paxton, this guidance is illegal.
“No federal statute, including EMTALA, supersedes or preempts the States’ power to regulate or prohibit abortion,” Paxton said.
Texas is one of many states with a trigger law that would make abortion illegal soon, as the days pass since the Dobbs decision that turned abortion rights over to the states. One Texas statue, The Human Life Protection Act, is expected to go into effect in Texas 30 days after the Supreme Court’s decision overruling Roe v. Wade on June 24. The Act criminalizes performing an abortion except if the pregnant person’s life is at risk. The potential criminal penalty for violating this law is anywhere from two years to life in prison and a civil penalty of at least $100,000.
Currently in Texas, an accomplice to an abortion can be criminally punished, unless the abortion is performed under medical advice for the purpose of saving the mother’s life.
Since the EMTALA guidance threatens the Medicare provider agreements for hospitals that don’t abide by the mandates, the Texas attorney general says the past week’s mandates have forced providers in Texas to face legal consequence if they provide an abortion or conversely by not providing one.
“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,” Paxton said in the suit.
The HHS did not immediately respond to request for comment.
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