Federal judge blocks Biden administration's 'unauthorized' federal guidance on abortions in Texas

U.S. District Judge James Wesley Hendrix ruled on August 23 that the Department of Health and Human Services' guidance pertaining to the enforcement of the federal Emergency Medical Treatment and Active Labor Act was "unauthorized" in Texas.

Following President Joe Biden's July 8 executive order on reproductive health, HHS issued new "clarifying guidance" on the EMTALA. The guidance "reaffirmed that [the EMTALA] protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations."

According to the EMTALA guidance issued by HHS, if a pregnant woman "presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment."

Refusal by a physician or a hospital to follow HHS' new guidance on the EMTALA could result in fines of $119,942. Additionally, any physician found in violation of the law as clarified in HHS' new guidance could be "excluded from participation in Medicare and State health care programs," as well as exposed to civil suits.

Concerning enforcement, the guidance specifies that any state actions against a physician who performs an abortion "in order to stabilize an emergency medical condition" would be pre-empted by the federal EMTALA statute. In Texas, if a doctor performs a prohibited abortion, the doctor could face life in prison or a $100,000 fine.

Judge Hendrix granted a preliminary injunction against the enforcement of the EMTALA as interpreted in HHS' July guidance, in Texas as well as against members of both the American Association of Pro-Life Obstetricians & Gynecologists and Christian Medical & Dental Associations.

His decision is in response to a lawsuit filed by Republican Texas Attorney General Ken Paxton on July 14.

At the time of filing, Paxton stated: "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." He indicated he was resolved to "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 State of Texas' original complaint alleged that the Biden administration, by way of the imposition of this guidance, was attempting "to use federal law to transform every emergency room in the country into a walk-in abortion clinic."

According to HHS Secretary Xavier Becerra, the Biden administration expected "providers to continue offering [abortion] services, and that federal law preempts state abortion bans when needed for emergency care."

HHS alleged in its July 11 release that stabilizing treatment "could include medical and/or surgical interventions, including abortion." It further stated, "If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person ... that state law is preempted."

Hendrix asserted that HHS "guidance goes well beyond EMTALA's text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist."

Concerning the nonexistence of such a conflict, Paxton's complaint noted that, as it currently stands, Texas' Human Life Protection Act does not apply "if the woman on whom the abortion is performed 'has a life-threatening physical condition' arising from a pregnancy that places her 'at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed.'"

Hendrix's ruling was issued ahead of the implementation of Texas' "trigger law," banning most abortions in the state, which goes into effect on August 25.

Paxton called Hendrix's ruling a "WIN for mothers, babies, & the TX healthcare industry."

The Biden administration has also sought to intervene in the state of Republican-led Idaho to prevent the enactment of its abortion "trigger law." It filed a lawsuit against the state on August 2.

On Monday, U.S. District Senior Judge B. Lynn Winmill said that he would issue a decision on August 24 regarding whether he would temporarily block Idaho's abortion ban while the lawsuit proceeds.