The Biden administration’s direction that hospitals and doctors provide emergency abortion treatments statewide is being put to a significant test by competing lawsuits in Texas and Idaho that could confuse doctors and put patients at risk, legal observers said.
Texas asked the U.S. District Court for the Northern District of Texas to block the latest guidance, arguing that it was an “abortion mandate” that unlawfully attempted to pre-empt state law. The American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical & Dental Associations have already joined the lawsuit, and other states with strict anti-abortion laws are likely to join Texas or file their own lawsuits.
The Justice Department followed suit by launching its own lawsuit in Idaho, making the opposite argument: that Idaho’s anti-abortion law is unlawful because federal law supersedes state law. When Idaho law goes into effect later this month, it will allow any doctor to be prosecuted for having an abortion, regardless of the circumstances. The lawsuit is the first time the Biden administration has violated a state abortion law since the US Supreme Court overturned it Roe v. calf.
The Department of Health and Human Services guidance reaffirms a doctor’s obligation under the decades-old Emergency Medical Treatment and Labor Act. The law states that EMTALA takes precedence when a state law directly conflicts with its provisions. The Biden administration also got past the U.S. Constitution’s primacy clause, which says federal law trumps conflicting state law, lawyers said.
Biden’s team is scrambling to challenge the Supreme Court decision with concrete steps to protect access to reproductive health. Since Democrats appear to lack the votes to pass substantive legislation, many of these actions will result from similar guidance and rulemaking. But the Biden administration must carefully weigh its wishes against the risks of a legal battle that could leave the executive branch with less power.
The pre-emption issue is now before two federal courts. The Texas case will most likely go before a judge Reed O’Connora George W Bush-Commissioner with a history of the statewide enactment of federal laws. The Idaho case targets the anti-abortion law, which is most at odds with EMTALA due to its narrow emergency exemptions.
“I wouldn’t be able to guess what’s going to happen, not because of what’s right in the law,” said Seema Mohapatra, a professor at SMU’s Dedman School of Law in Texas. The federal courts are crammed with “ideological commissioners who don’t necessarily interpret the law in the way we would have imagined,” she said.
The Emergency Medical Treatment and Labor Act, which “has labor in its name,” was enacted to prevent patients being turned away based on their ability to pay, Mohapatra said.
The law states that emergency rooms must examine patients and that if a doctor determines they have a “medical emergency,” they must be stabilized.
“A medical emergency is pretty serious,” said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law. “Many of us go to the emergency room for conditions that don’t fit the definition.”
The definition of HHS is a condition that is so serious that, without prompt treatment, it could ‘seriously endanger’ a person’s health or affect bodily functions or organs. For a pregnant person, this could include an ectopic pregnancy, complications from a miscarriage, or preeclampsia.
“This does not mean that an otherwise healthy pregnant woman who presents to an emergency room can make a claim for an abortion,” said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University.
Abortion laws in all 50 states provide exceptions when a pregnant person’s life is in danger. But some laws, like the restrictive anti-abortion laws of Texas and Idaho, are narrower than EMTALA’s requirements.
Physicians would be exempt from Texas law if they were performing an abortion to treat an ectopic pregnancy or miscarriage. In Idaho, they can only perform an abortion if it is necessary “to prevent the death of the pregnant woman,” according to the Biden administration’s complaint. None of the laws of the states contain the general provision of endangerment of a person’s health, which makes them conflict with EMTALA.
It is difficult to say what conditions might be required under EMTALA’s “Health” provision. “What can endanger a woman’s health from a doctor’s perspective may be different than a doctor’s at a hospital across the street,” said John Seago, president of Texas Right to Life.
in the Doe vs. Bolton, In a 1973 case, the Supreme Court ruled that a doctor should consider all aspects of a patient’s health – “physical, emotional, psychological, family, and the woman’s age.”
“Iron Legal Principle”
Gostin said he had been skeptical of many proponents of the options, and that the Biden administration was considering protecting reproductive health care like a federal public health emergency. “The only area where I think the President has strong legal and public health reasons is EMTALA,” he said.
EMTALA is based on “an ironclad legal principle” that when there is a conflict between federal and state law, federal law prevails, Gostin said.
Texas argues that there is no conflict with its law because EMTALA “does not confer a right to any particular treatment,” according to the complaint.
“That’s clearly wrong,” Sepper said.
But the 10th Amendment states that powers not granted to the federal government are reserved for the states. “The sovereign right to enforce its criminal laws is the epitome of Texas police power,” the complaint states.
“I am skeptical that the EMTALA legislation can be construed as requiring a criminal act under state law,” said James Blumstein, a professor at Vanderbilt Law School.
Courts generally assume preemption over matters that are under local control, “and abortion is something that is clearly under local control now,” Blumstein said.
Others are confident the ruling Texas is seeking “would not be consistent with our normal preventive rules,” Mohapatra said.
“EMTALA clearly requires emergency departments to stabilize patients, prevent their health from deteriorating and save their lives. If abortion services are the only way to prevent health deterioration or save the woman’s life, they must provide those services regardless of state law,” Gostin said.
First of many legal challenges?
The Biden administration’s lawsuit against Idaho is “probably the first of many alleging federal anticipation of state anti-abortion laws,” Mohapatra said.
Still, the judge assigned to the Texas case could bar the state’s guidance if they agree with the state’s legal reasoning, which could trigger copycat lawsuits, Sepper said.
If the cases lead to a separation of circles, they “can find their way back before the same six judges who ruled Dobbs‘ Gostin said. “It’s very difficult to say how they would rule this case.”
Texas’ lawsuit is already causing “exactly what HHS policy was intended to prevent, which is delay and confusion in an emergency room,” Mohapatra said.
People in the US are seeing delays in treating miscarriages as doctors consult legal experts on whether a patient’s health is at risk enough to justify an abortion.
Blumstein said that if he were a doctor and asked to perform an abortion, which is a criminal offense under state law, “I would say, ‘Find another doctor.'”