The 5th U.S. Circuit Court of Appeals heard arguments Tuesday about whether the federal government can require Texas hospitals to perform life-saving abortions, despite the state’s near-total ban on the procedure.
After the overturn of Roe v. Wade, President Joe Biden issued guidance to federally funded hospitals, reminding them of their obligation to provide stabilizing health care to anyone who shows up at the emergency room, even if that care requires performing an abortion.
The Biden administration said this was not a new policy, but merely reiterating existing regulations under the federal Emergency Medical Treatment and Labor Act (EMTALA).
Texas challenged the guidance, saying it was an improperly implemented overreach that creates a “nationwide mandate that every hospital and emergency-room physician perform abortions.”
The case was filed before U.S. District Judge James Wesley Hendrix, the only full-time federal judge in Lubbock, who has heard many of the state’s cases since he was appointed to the bench by President Donald Trump in 2019.
Hendrix sided with the state on this issue, saying the Biden administration had exceeded its authority and not followed proper procedure in issuing this guidance. He enjoined the guidance within Texas and ruled that Texas’ abortion laws are not preempted by EMTALA.
The Department of Justice appealed that ruling, and a three-judge panel — two judges appointed by Trump and one by President George W. Bush — heard arguments Tuesday at the 5th U.S. Circuit Court of Appeals in New Orleans. The court did not indicate when it might rule.
Assistant Texas Solicitor General Natalie Thompson argued that Texas’ law is “perfectly consistent” with EMTALA because it allows for abortions to save the life of the mother. It is the guidance from the Biden administration, she argued, that went further than the statute requires.
Judge Leslie Southwick seemed to agree, saying there were several “extraordinary things, it seems to me, about this guidance.”
Southwick said it seemed HHS was using this guidance to expand abortion access in Texas to include not just life-saving care, but “broader categories of things, mental health or whatever else HHS would say an abortion is required for.”
“This statute really has to do with the ugly concept of patient dumping and it’s been converted by HHS through this guidance into an abortion statute,” he said.
See here for the background. Honestly, just seeing who was on the three-judge panel was probably enough to tell you how this will go, and it seems there were no surprises. A district court in Idaho ruled for the Biden Administration at almost the same time as the district court judge in the Texas case gave an opposite ruling, though another bad three-judge panel stayed that ruling pending appeal. Still, there’s a decent chance this one will make it to SCOTUS, whether there’s a circuit split or just because it’s a pretty important issue. In the meantime, there is also the state lawsuit that seeks to clarify the “life of the mother” exceptions that very few people have been able to use, which doesn’t address EMTALA directly but which may offer some guidance anyway. Until then, we remain in the bad kind of limbo.