Biden Admin Said ER's Have To Provide Abortions When Women's Lives Are In Danger. So Texas Is Suing.
Earlier this week, the Biden administration clarified that states with laws barring abortion would still be subject to the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals that participate in Medicare and thus receive federal funding to provide those who come in with a serious emergency or while in labor with stabilizing treatment regardless of their ability to pay. This means that if the stabilizing treatment required for a certain condition is an abortion, as may be the case with an ectopic pregnancy or preeclampsia, then the patient gets an abortion. If not, the hospital may risk losing their ability to participate in Medicare or receive federal funding.
To be clear, there was no change in policy, this is just the actual law as it now stands, and it has been the law since 1986. It's purpose is to prevent patient dumping (when hospitals prematurely discharge indigent or homeless people who require expensive care), but it also allows doctors in emergency rooms to make quick decisions in emergency situations without needing to check whether a patient's insurance covers whatever they're going to do, or is accepted by the hospital, or even exists. It's basically a real cute lil Bandaid for the fact that our healthcare system is a profit-driven nightmare.
In this case, however, it means that doctors should not have to wait until the last second to perform a necessary emergency abortion when a patient's life is at risk, or have to check in with the state to see if they're allowed to save that patient's life.
But now Texas Attorney General Ken Paxton is filing a lawsuit against the federal government, claiming that the 36-year-old law violates the state's “sovereign interest in the power to create and enforce a legal code.”
Here, enjoy the world's most deliberately obtuse lawsuit, which appears to have been written by a 14-year-old internet troll:
The Biden Administration’s response to Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), which ended the terrible regime of Roe v. Wade, is to attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic. 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. But Defendants’ Abortion Mandate forces hospitals and doctors to commit crimes and risk their licensure under Texas law. The Emergency Medical Treatment and Labor Act (EMTALA) that Defendants cite as the basis for their Abortion Mandate does not authorize—and has never authorized—the federal government to compel healthcare providers to perform abortions..
Many of us certainly hope that, in the near future, we have a federal law mandating abortion be accessible to all and once again legal throughout the United States. This, however, is not that. This specifically mandates that Texas hospitals follow the law as it has existed since 1986 or risk not being allowed to participate in Medicare or Medicaid. This has always been the law.
Here is their darling little list of the ways they will be personally hurt if required to follow the federal law:
The Effects of the Abortion Mandate in Texas
40. Texas is injured because the Abortion Mandate purports to preempt its laws. This violates Texas’s “sovereign interest in the power to create and enforce a legal code.” Texas v. United States, 809 F.3d 134, 153 (5th Cir. 2015) (quotation omitted). The sovereign right to enforce its criminal laws is the epitome of Texas’s police power.
41. Furthermore, the State of Texas operates hospitals that participate in Medicare. The EMTALA Guidance explicitly threatens the Medicare provider agreements for any healthcare providers that refuse to abide by the Abortion Mandate. These hospitals are now threatened with having to choose between violating state law under threat of criminal penalty or jeopardizing their ability to participate in Medicaid.
42. By requiring Medicare-participating hospitals, including hospitals operated by the State of Texas, to provide abortions when the life of the mother is not in danger, the Abortion Mandate directly infringes on Texas’s sovereign and quasi-sovereign authority.
43. In 2020, Medicare hospital expenditures exceeded $1.2 billion. For most hospitals, more than half of patient revenue is attributable to Medicaid and Medicare. The intended consequence of the Abortion Mandate is that numerous physicians and hospitals in Texas will be threatened with extensive civil penalties and loss of livelihood as a result of following State law.
Again, to be clear, this, sadly, only applies to emergency situations in which the life of the patient is in danger. By disingenuously pretending that is not the case, Texas is only hurting itself. Still, thanks to Article VI, Paragraph 2 of the US Constitution, also known as the Supremacy Clause, federal law does in fact take priority over conflicting state laws.
Of course, if Texas wants to ensure that none of its hospitals have to close down, it can instruct them to not violate EMTALA, which has not changed in any capacity from what it was before Roe was overturned. The state may also want to consider that the physicians will not suffer a loss of livelihood, because there is a doctor shortage all over the United States and they will be free to practice in other states that will not require them to violate federal law. Perhaps Texans can have all of their medical emergencies handled by the staff of Crisis Pregnancy Centers?
I kid. I do not want the people of Texas to not have doctors or hospitals. I do not want them to be operated on by the staff of Crisis Pregnancy Centers, who very rarely have any medical training at all. Why? Because I'm not a monster and thus have no interest in killing people or letting them die, unlike some people in Texas I could name.
That being said, ob-gyns across the country are considering moving to states where abortion is legal. Texas already has a physician shortage in 228 of its 254 counties and 249 of them at least have areas where there are not enough physicians. There are almost no ob-gyns in the state's rural areas and patients frequently have to drive over an hour and a half to get to a hospital that does labor and delivery.
Texas's decision is going to affect its citizens' ability to access medical care, particularly reproductive health care — whether they get some special dispensation to let people die of ectopic pregnancies on the floors of their emergency rooms or not. This is not something that is going to be without consequences.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse