Paxton sues over emergency guidance to doctors

This is what “leaving it to the states” looks like.

Best mugshot ever

Texas is suing the Biden administration over guidance released Monday telling the nation’s doctors they’re protected by federal law to terminate a pregnancy as part of emergency treatment — and threatening to defund hospitals that don’t perform these procedures.

The Biden administration’s guidance states that federal law requires doctors to perform abortions for pregnant people in emergency rooms when it is “the stabilizing treatment necessary” to resolve a medical emergency, including treatments for ectopic pregnancy, hypertension and preeclampsia.

On Wednesday, the Biden administration also warned retail pharmacies that they must fill prescriptions for pills that can induce abortion or risk violating federal civil rights law.

These two recent actions pit the federal executive branch against state governments after the U.S. Supreme Court undid a nearly half-century-old precedent that had affirmed access to abortion as a constitutional right.

Texas Attorney General Ken Paxton’s office filed the suit challenging the guidance in federal court on Thursday, saying the Biden administration’s guidance violates the state’s “sovereign interest in the power to create and enforce a legal code.”


The Biden administration reassured the nation’s doctors that they don’t need to wait until a patient’s health deteriorates before acting and that they can act in cases where nontreatment would result in serious impairment, guidance that comes as medical professionals in Texas and other states where abortion is banned are trying to figure out what kind of women’s health care is allowed under new restrictions. The guidance isn’t seeking to update existing law but is said to clarify a hospital’s duties under the Emergency Medical Treatment and Active Labor Act.

I thought it was federal law that was sovereign, but what do I know? I know that if Paxton gets his way women are going to die because doctors won’t be able to treat them properly and in a timely fashion. That’s what’s really at stake here. And I expect Paxton to get his way, at least at first. The Chron points out the obvious:

The case underscores the dominant position that conservative Republicans hold in the federal judicial system: Paxton filed the case in Lubbock, in the U.S. Northern District of Texas, where there are 12 judges, 10 of whom were appointed by Republican presidents and six of whom were named by former President Donald J. Trump.

If Paxton were to lose, the case would go to the Fifth 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.

I guarantee you, whatever the district court judge does, the Fifth Circuit will give Ken Paxton what he wants because that’s what they do. And then SCOTUS gets to make another abortion ruling. Great system we have here, isn’t it?

I had drafted a post about the imminent threat to EMTALA that the Biden administration’s guidance had queued up, and then made the mistake of not publishing it in time to keep up with the news cycle. My bad. The original post is beneath the fold. I stand by what I said in this post. Now let’s bring the fight that this requires. Daily Kos and Mother Jones have more.

Of course there will be a fight. And it’s one that we who support abortion rights should relish.

The Biden administration said on Monday healthcare providers must offer abortion services if the life of a mother is at risk and that procedures conducted under such circumstances would be protected under federal law regardless of various state bans.

The guidance comes days after President Joe Biden signed an executive order easing access to services to terminate pregnancies after the U.S. top court’s decision last month to overturn the Roe v. Wade ruling.

The Department of Health & Human Services said on Monday physicians must provide that treatment if they believe a pregnant patient is experiencing an emergency medical condition as defined by Emergency Medical Treatment and Active Labor Act (EMTALA) and if abortion is a “stabilizing treatment”.

EMTALA requires medical facilities determine whether a person seeking treatment may be in labor or whether they face an emergency health situation and also protects providers when offering legally mandated abortion services in such situations.

The department said in a statement emergency conditions include “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.”

The guidance does not reflect new policy, but merely reminds doctors and providers of their existing obligations under federal law, the health department said.

EMTALA is the federal law that prevents hospitals from turning you away from their emergency room if you can’t pay for their services. You can see the new guidance here. The WaPo has some further details.

Did the memo contain new policy? No, it didn’t. The federal health department was pretty clear on that point. “This memorandum is being issued to remind hospitals of their existing obligation to comply with EMTALA and does not contain new policy,” a note at the top of the document states.

Instead, the guidance sought to cut through the confusion and arm physicians with a defense if they get sued by their state. Federal law trumps state abortion bans and protects clinicians’ judgment when administering treatment, regardless of the state they’re practicing in, HHS said.

Some providers welcomed the assurances, although it’s unlikely to subdue Democratic activists’ calls for the White House to push the limits of what it can do to respond to the Supreme Court decision overturning Roe v. Wade’s decades-old protections. President Biden signed an executive order last week aimed at directing cabinet secretaries to take a number of steps to bolster abortion rights, which including shoring up emergency care.


The guidance centers on the Emergency Medical Treatment and Active Labor Act, known as EMTALA. Enacted in 1986, the law requires that anyone coming into an emergency department be stabilized and treated, regardless of their ability to pay for care.

All abortion bans currently in effect permit providers to terminate a pregnancy to protect the life of the mother. Yet they can be vague, leaving doctors to navigate a complex environment of what constitutes a life-threatening condition. The vast majority of abortions are elective, rather than due to an emergency medical condition. Yet some providers have feared they may be forced to choose between breaking their doctors’ oath and breaking the law, our colleague Ariana Eunjung Cha recently reported.

  • “With the change in the law, people providing certain services have raised questions to the authorities inside the hospital — the legal authorities — just to make sure what their direction should be,” said Chip Kahn, president of the Federation of American Hospitals, which represents for-profit hospitals.

Doctors don’t need to wait for a condition to worsen or for the patient to be close to death before intervening, senior HHS officials told reporters yesterday. EMTALA also permits a provider to terminate a pregnancy when an emergency condition could seriously impair the patients’ health.

The guidance centers on the Emergency Medical Treatment and Active Labor Act, known as EMTALA. Enacted in 1986, the law requires that anyone coming into an emergency department be stabilized and treated, regardless of their ability to pay for care.

And failing to do so when it’s necessary carries steep penalties: Hospitals could face fines or be booted from the Medicare program.

Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law:

But the memo also nodded to this fact: EMTALA doesn’t prevent a doctor from being sued, though it could serve “as a defense to a state enforcement action.” Essentially, HHS is arguing that the long-standing federal emergency medical law supersedes any conflicting state laws that may otherwise prohibit an abortion.

“I think [the guidance] was needed,” said Diana Nordlund, an emergency physician in Michigan and spokesperson for the American College of Emergency Physicians. “But I also don’t see it as a panacea, because, of course, as the guidance listed, it doesn’t completely obviate the potential for legal action.”

Another ACEP official, Laura Wooster, said a “significant amount of uncertainty” still remains for emergency physicians — and that the trade group is assembling a team of medical experts to examine the range of clinical and legal implications of a post-Roe world.

Federal law overrules state law, so EMTALA would be in effect in places with even the strictest abortion bans. But as noted, that wouldn’t stop a zealous prosecutor from arresting the doctors in question, and while EMTALA would provide them with a robust defense, they’d still potentially be on trial for their lives. Who wants that? And come on, we know that the radical forced-birthers in Texas and elsewhere will have no compunction about testing EMTALA’s constitutionality in from of this Supreme Court. Isn’t that what they meant by “leaving it to the states”? For sure this winds up in court. We’re already hearing stories and reading accounts from doctors about their fear of being prosecuted for trying to save a woman’s life under these circumstances. The lawsuits and arrests are the next step.

And, whether or not we get federal legislation to encode abortion rights or not, that’s fine. Because support for abortion when the mother’s life is in danger is overwhelmingly popular, like over 80% popular nationally. I for one would be very happy to have a political fight on those terms. If the Briscoe Cains of the world want to engage over that, bring it on. The stakes would be incredibly high and that will make some folks very very nervous, but if you can’t fight this battle then maybe politics isn’t for you. I don’t know what else to say. Reform Austin has more.

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