Biden administration can't require emergency abortions, Texas lawsuit says

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The state of Texas is challenging Biden administration guidance that says emergency rooms must provide abortions to prevent serious jeopardy to a patient’s life and health in emergency situations.

Texas Attorney General Ken Paxton filed the lawsuit Thursday in federal court in Lubbock, Texas. The suit says the Biden administration is trying to use federal law “to transform every emergency room in the country into a walk-in abortion clinic.”

The suit challenges guidance by the U.S. Department of Health & Human Services issued on Monday. The guidance says emergency rooms that receive Medicare funds must comply with the federal Emergency Medical Treatment and Active Labor Act, known as EMTALA.

If a pregnant patient is experiencing a medical emergency as defined by the law, and abortion is a stabilizing treatment that would resolve the condition, the abortion must be provided, according to the agency guidance.

The federal law preempts state laws that prevent abortion and don’t contain an exception to preserve the life and health of the pregnant person, the guidance says. Emergency conditions include ectopic pregnancies, complications of pregnancy loss and emergent hypertensive disorders.

The Texas lawsuit says EMTALA was enacted to prevent hospitals from refusing to treat patients who are unable to pay in a medical emergency.

“No federal statute confers a right to abortion. EMTALA is no different,” the lawsuit says. “It 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.”

Texas has a trigger law that takes effect 30 days after the Supreme Court’s judgment in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. The trigger law has exceptions in cases where a life-threatening condition places a pregnant woman at risk of death or substantial impairment of a major bodily function. Never-repealed Texas laws enacted before Roe v. Wade also ban abortions, except when needed to save the life of the mother.

The federal guidance conflicts with Texas law by requiring abortions in situations where the pregnant patient’s life is not in danger, the lawsuit says.

The lawsuit says the federal “abortion mandate” exceeded statutory authority, failed to comply with administrative requirements for notice and comment, was arbitrary and capricious, and was an unconstitutional exercise of authority.

“President Biden is flagrantly disregarding the legislative and democratic process—and flouting the Supreme Court’s ruling before the ink is dry—by having his appointed bureaucrats mandate that hospitals and emergency medicine physicians must perform abortions,” the lawsuit said, referring to Dobbs.

Paxton’s press release on the lawsuit is here. The Washington Post had coverage.

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