Texas takes on federal govt over new abortion guidance
The state of Texas sued the federal government yesterday after the Biden Administration said federal rules require hospitals to provide abortions if the procedure is necessary to save a mother’s life, even in cases where state law mostly bans the procedure.
The lawsuit, which names the Department of Health and Human Services and Secretary Xavier Becerra among its defendants, says the guidance issued by the Biden Administration earlier this week is unlawful, and that the Emergency Medical Treatment and Labour Act does not cover abortions.
‘‘The Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic,’’ Texas Attorney General Ken Paxton said as he announced the lawsuit. He said the federal government isn’t authorised to require emergency healthcare providers to perform abortions.
The legal wrangling is causing concern for doctors. Dr Ghazaleh Moayedi, a Dallas-based obstetrician 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.
‘‘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,’’ Moayedi said. ‘‘It is unconscionable.’’
The lawsuit comes after the Biden Administration told hospitals on Tuesday that they ‘‘must’’ provide abortion services if the life of the mother is at risk, saying federal law on emergency treatment guidelines preempts state laws that have near total bans on the procedure, after the US Supreme Court ruled that abortion is not a constitutional right.
In a letter to providers, the Department of Health and Human Services said medical facilities are required to determine whether a person seeking treatment may be in labour or whether they face an emergency health situation – or one that could develop into an emergency – and to provide treatment. The letter says if abortion is the necessary treatment to stabilise the patient, it must be done.
‘‘When a state law prohibits abortion and does not include an exception for the life of the pregnant person – or draws the exception more narrowly than
EMTALA’s emergency medical condition definition – that state law is preempted,’’ the letter said.
The department says its guidance doesn’t reflect new policy, but reminds doctors and providers of existing obligations under EMTALA, which was adopted in 1986 and signed by President Ronald Reagan.
But Texas officials disagree, and are asking a judge to set aside the Biden Administration’s guidance and declare it unlawful.
The lawsuit says Biden is ‘‘flagrantly disregarding’’ the legislative and democratic process, and that the guidance forces ‘‘hospitals and doctors to commit crimes and risk their licensure under Texas law’’.
The lawsuit said the EMTALA does not mandate, direct or suggest providing any specific treatment, and says nothing about abortion.
‘‘On the contrary, EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child,’’ the lawsuit says. ‘‘It is obvious that abortion does not preserve the life or health of an unborn child.’’
The fall of Roe put in motion Texas’ trigger law that will ban virtually all abortions in coming weeks. Clinics have tried to continue serving patients in the meantime, but court battles over whether a dormant 1925 abortion ban can be enforced for now has already stopped most doctors from performing abortions.
Laura Hermer, a professor at Mitchell Hamline School of Law in St Paul, Minnesota, said Texas is more interested in its own sovereignty than in protecting pregnant women.
‘‘It is dangerous to be pregnant in Texas,’’ said Hermer.
‘‘People who are pregnant are going to die in Texas because of the position Texas is taking on this issue.
‘‘This is not pro-life. There is nothing pro-life about this.’’
‘‘The Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic.’’ Ken Paxton
Texas Attorney General