Paxton sues over HHS abortion guidance
State Attorney General Ken Paxton has sued in federal court seeking to overturn guidance from the Biden administration that advised medical professionals women are entitled emergency abortions under federal law if medically necessary, even if doing so goes against state law.
Earlier this week, Biden’s Department of Health and Human Services sent a letter to medical practitioners around the country about a 1985 federal law called the Emergency Medical Treatment and Active Labor Act.
As front-line health care providers, the federal statute “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice,” the guidance reads. The law says only doctors can determine what the correct medical care is, according to the Biden administration’s interpretation, and, “Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted.”
A separate guidance issued by the Centers for Medicare & Medicaid Services also on Monday warned that hospitals under the law owe a duty of care to those who seek medical help, and if they don’t meet it, they can lose their ability to access federal Medicare funds. For example: If a woman in Texas checked into a hospital with an emergency medical condition that would kill her unless the fetus were aborted, the hospital couldn’t turn her away or transfer her against her will to another state without risking their access to federal funds.
Those two guidances together constitute an “abortion mandate,” the lawsuit says. In a news release, Paxton wrote that if the guidance is allowed to stand, it would “transform every emergency room in the country into a walk-in abortion clinic.”
If doctors determine a pregnant patient is having a medical emergency and an abortion is necessary, they are obligated to do so, the guidance says. Texas state law already has similar provisions, allowing the procedure if it’s necessary to save the life of the mother.
Paxton’s office argued that Monday’s letter goes beyond what’s allowed under federal law and that the guidance unconstitutionally tramples the states’ rights guaranteed in the 10th Amendment.
“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,” Paxton wrote in a news release. “I will ensure that President Biden will be forced to comply with the Supreme Court’s important decision concerning abortion and I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”
The case underscores the dominant position conservative Republicans hold in the federal judicial system. Paxton filed the case in Lubbock, in the U.S. Northern District of Texas; of that district’s 12 judges, 10 were appointed by Republican presidents and six were named by former President Donald Trump.
If Paxton were to lose and appeal, the case would go to the 5th Circuit Court in New Orleans, widely recognized as one of the most conservative federal appellate courts in the country, and the final step would be the Supreme Court, which ruled last month to overturn Roe v. Wade in the first place.
In a news release distributed Thursday afternoon, Paxton’s opponent in the Nov. 8 general election, Democrat Rochelle Garza, said “suing the Biden administration to stop medical exceptions for abortions is just the latest example of his extremist agenda. What he’s advocating for is femicide — the intentional killing of women by withholding lifesaving care.”
The federal Department of Health and Human Services did not immediately respond to a request for comment, but Secretary Xavier Becerra released a statement Monday when the guidance was issued.
“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Becerra wrote. “Health care must be between a patient and their doctor, not a politician. We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”