A federal appeals court held Tuesday that the federal government can’t require emergency rooms to perform life-saving abortions if state law restricts abortion rights. The decision by the Fifth Circuit Court Of Appeals, in a case brought by Texas against the Department of Health and Human Services, tosses out a guidance issued by HHS shortly after the Supreme Court’s Dobbs decision overturned Roe v. Wade in June 2022. The guidance invoked the federal law governing emergency rooms’ legal obligations, the Emergency Medical Treatment and Labor Act (EMTALA), stating that
When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.
Further, as Law Guy Chris Geidner explains, the guidance reminded states that in a medical emergency, EMTALA requires hospitals to
provide “stabilizing treatment” or “an appropriate transfer” to a hospital that can do so. If the necessary stabilizing treatment is an abortion, “the physician must provide that treatment,” the guidance states. Finally, the guidance makes clear repeatedly that EMTALA preempts state laws that conflict with EMTALA obligations, including state abortion bans.
Texas sued, complaining that it would be tyrannical for the feds to protect women’s lives when state law bans all abortions except those falling under an insanely vague exception: Abortion is only allowed only when the pregnancy “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”
The state has so far offered no guidelines on exactly what situations this exception covers, although separate from this federal lawsuit, Attorney General Ken Paxton threatened to imprison any doctor who provided an abortion for Kate Cox, even though her situation threatened her life and her reproductive system. The Texas supreme court also vomited up a bunch of stuff insisting that Cox couldn’t get permission from a judge to have a life-saving abortion, because only her doctor could make medical decisions, and the doctor should have just performed the abortion if the doctor were really sure it was needed. Plus, the doctor needn’t have worried about prison unless a court decided later that the abortion wasn’t medically necessary. It’s quite a catch.
Still, the state argued in its lawsuit that the federal guidance on EMTALA protecting a woman’s actual life would let too many women and doctors sneak in abortions when patients weren’t yet at death’s door, creating a “nationwide mandate that every hospital and emergency-room physician perform abortions.” You know, to save lives, shame on the feds’ madness.
PREVIOUSLY:
A federal district judge ruled in August 2022 that the guidance amounted to a “new interpretation” of EMTALA that ignored federal law on rule making, and the Fifth Circuit agreed. Geidner argues that’s a dubious claim, noting that the Justice Department says EMTALA always protected the lives of pregnant patients in emergencies, but that before Dobbs, there was never any reason to remind states of that, because Roe was the law of the land and “Everybody understood that this is what was required.”
The Fifth Circuit decision insists instead that HHS wasn’t simply reminding hospitals of the duties they already had under EMTALA, but had created a “new” legal position just because the Supreme Court had changed the national law on abortion, so that’s one hell of a catch. But as Geidner points out, the Supremes hadn’t ruled on EMTALA, so HHS was “issuing guidance to remind hospitals of their existing obligations under EMTALA because Dobbs was going to be leading to changes in other laws.”
Ultimately, Geidner argues, the Fifth Circuit believes that “a provider does not have to stabilize the patient if the state outlaws stabilizing the patient.” So sorry, ladies, if you don’t want to die, don’t ever get pregnant, even if you want to. States have no obligation to let you have emergency care if they don’t want to.
In any case, a separate federal lawsuit in Idaho blocked the state from enforcing its similarly awful abortion law, citing EMTALA, and that case is headed to the less insane Ninth Circuit on appeal, so despite the Supremes’ wish that they’ll never have to decide abortion cases again, this question will inevitably come before them.
And in the meantime, the Fifth Circuit just gave voters one more excellent reason to vote against Republicans at every level this year.
[Texas Tribune / Texas v. Becerra / Law Dork]
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Cropped the babby pic so the kitty will show up in tweets. Otherwise it's just the engine bay and a tiny sunlit ear at the bottom.
In a quaint Quincy cemetery, Abigail Adams is rolling in her grave.
"by the way in the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar care and attention is not paid to the Laidies we are determined to foment a Rebelion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.
That your Sex are Naturally Tyrannical is a Truth so thoroughly established as to admit of no dispute, but such of you as wish to be happy willingly give up the harsh title of Master for the more tender and endearing one of Friend. Why then, not put it out of the power of the vicious and the Lawless to use us with cruelty and indignity with impunity. Men of Sense in all Ages abhor those customs which treat us only as the vassals of your Sex. Regard us then as Beings placed by providence under your protection and in immitation of the Supreem Being make use of that power only for our happiness."