Texas has brought a lawsuit against the Biden administration’s requirement that doctors nationwide provide lifesaving abortions in emergency situations or risk the loss of their Medicare funding.
Filed Thursday, the state contends in its complaint that the Emergency Medical Treatment and Labor Act (EMTALA) cited by the federal government in abortion care guidance released Monday “does not authorize—and has never authorized—the federal government to compel healthcare providers to perform abortions.”
The guidance, issued Monday by the Department of Health and Human Services (HHS), listed “ectopic pregnancy, complications of pregnancy loss or emergent hypertensive disorders, such as preeclampsia with severe features,” among the potential emergency medical conditions that could require an abortion as stabilizing treatment.
HHS said Monday that the EMTALA statute preempts state laws that either do not include health or lifesaving exceptions or “draws the exception more narrowly than EMTALA’s emergency medical condition definition.” Failure to do so could result in fines or revocation of a provider organization’s Medicare status.
Texas is set to have a broad ban on abortion procedures go into effect later this month, although the law on the books does have exceptions for “life-threatening physical condition” and “risk of death or … a serious risk of substantial impairment of a major bodily function unless the abortion is performed.”
Still, Texas wrote in its complaint that HHS’ guidance oversteps both EMTALA and the state’s "sovereign interest in the power to create and enforce a legal code.” The guidance’s impact on hospitals’ Medicare funding also represents “an unconstitutional exercise of spending power,” according to the lawsuit.
“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,” Texas Attorney General Ken Paxton said in a statement. “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.”
White House Press Secretary Karine Jean-Pierre replied to the suit Thursday evening on Twitter, writing that “it is unthinkable that this public official [Paxton] would sue to block women from receiving lifesaving care in emergency rooms, a right protected under U.S. law.”
Last month’s Supreme Court decision overturning Roe v. Wade left many healthcare providers in abortion-restricting states unsure of their legal obligations and whether certain services could open them up to penalties or other enforcement.
Texas’ lawsuit is the first direct challenge between a state and the federal government that could hash out where those blurry lines on abortion care will be drawn. Healthcare law experts said they expect similar conflict to arise regarding some states’ restrictions on cross-border travel for reproductive care.
President Joe Biden, HHS Secretary Xavier Becerra and other administration officials have signaled their willingness to devote federal resources toward increasing access to abortion or protecting threatened reproductive health services.
Alongside Monday’s EMTALA guidance for providers, HHS also warned retail pharmacies this week that they must continue providing abortion pills, birth control and other reproductive care treatments under federal law.
Still, the administration has so far restrained from employing some of the heavier-handed executive actions at its disposal, such as the declaration of a public health emergency on abortion access. Dozens of Democratic lawmakers have written to the president (PDF) in recent weeks urging him to make the declaration.