Federal law that protects emergency life-saving abortions challenged in Texas suit
The emergency room sign at O’Bleness hospital in Athens, Ohio. Photo by David DeWitt, OCJ.
WASHINGTON — Texas Attorney General Ken Paxton filed a lawsuit against the Biden administration Thursday, arguing that states shouldn’t have to comply with a federal law that protects doctors who perform abortions to save the patient’s life.
“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,” Paxton said in a written statement.
Press Secretary Karine Jean-Pierre said in a statement the lawsuit “is yet another example of an extreme and radical Republican elected official.”
“It is unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected under U.S. law,” she added.
The U.S. Department of Health and Human Services released a reminder Monday for hospitals, doctors and other health care providers on the Emergency Medical Treatment and Active Labor Act.
HHS Secretary Xavier Becerra wrote in a letter that the law, sometimes referred to as EMTALA, protects health care providers who perform abortions to save the patient’s life even if the state laws bans all abortions, or abortions to save the patient’s life.
Becerra wrote that “if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, 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.”
Those conditions could include ectopic pregnancy, pregnancy loss complications, or preeclampsia with severe features, he wrote.
Becerra warned in the letter that any hospital found to violate the emergency care law “may be subject to termination of its Medicare provider agreement and/or the imposition of civil monetary penalties.”
Dr. Kristyn Brandi, the board chair at Physicians for Reproductive Health in New Jersey, told the U.S. Senate committee that oversees health care policy this week that the federal law historically has been used to prevent hospitals from turning away patients if they are unable to pay for care.
It requires emergency department physicians to assess a patient and then stabilize them if it’s an emergency or transfer that patient if the hospital can’t provide the care they need, she said.
Brandi told the Senate Health, Education, Labor and Pensions Committee that there are loopholes in the federal protections, including that religious hospitals don’t necessarily fall under EMTALA and that doctors will likely end up questioning when exactly a patient is sick enough to fall under the protections.
The Texas attorney general’s lawsuit, filed in the U.S. District Court for the Northern District of Texas Lubbock Division, notes that EMTALA defines an emergency medical condition as something that manifests with “acute symptoms of sufficient severity (including severe pain),” where a lack of immediate medical attention could place the patient’s health in serious jeopardy, cause serious impairment to bodily functions, or serious dysfunction of any bodily function or part.
The law notes that “with respect to a pregnant woman, the health of the woman or her unborn child” could be in serious jeopardy to trigger its protections.
The Texas lawsuit argues that EMTALA does not guarantee access to abortion.
“On the contrary, EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child,” Paxton wrote. “It is obvious that abortion does not preserve the life or health of an unborn child.”
The lawsuit argues that the HHS guidance on emergency medical care to protect the life of the pregnant patient will force hospitals “to choose between violating state law under threat of criminal penalty or jeopardizing their ability to participate in” federal health care programs like Medicare and Medicaid.
Paxton also wrote that EMTALA violates the 10th Amendment, which says that any powers not given to the federal government by the Constitution fall to the states and the people.
He argued that because the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization the Constitution no longer holds the right to abortion that EMTALA is “an unconstitutional exercise of authority and must be held unlawful and set aside.”
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