Texas sues US health secretary over emergency abortion guidelines

The state of Texas sued the federal government Thursday after the Biden administration said federal rules require hospitals to perform abortions if the procedure is necessary to save the mother’s life.

The lawsuit, which names the Department of Health and Human Services and Secretary Xavier Becerra among its defendants, says the guidelines issued by the Biden administration this week are illegal and that the Emergency Medical Treatment and Labor Act does not cover abortions.

“The Biden administration is seeking to transform every emergency room in the country into an abortion clinic,” the Texas attorney said. Gen. Ken Paxton said when he announced the lawsuit. He said the federal government is not authorized to require emergency health care providers to perform abortions.

Laura Hermer, a professor at Mitchell Hamline School of Law in St. Paul, Minn., said Texas is more interested in its own sovereignty than protecting pregnant women.

“It’s dangerous to be pregnant in Texas,” Hermer said. “People who are pregnant are going to die in Texas because of the position that Texas is taking on this issue. This is not about life. There’s nothing pro-life about that.”

Jonathan Turley, a professor at the George Washington University School of Law, said it was surprising that the challenge came from a state government. “Typically, providers would challenge any coverage mandate that is not clearly established in federal law,” Turley said.

The lawsuit comes after the Biden administration told hospitals on Monday that they must provide abortion services if the mother’s life is at risk, saying the federal Emergency Treatment Guidelines Act preempts state laws that have nearly full bans on the procedure after the US Supreme Court ruled that abortion is not a constitutional right.

In a letter to providers, the Department of Health and Human Services said medical facilities are required to determine whether the person seeking treatment may be in labor or is facing a medical emergency — or one that could develop into an emergency — and provide treatment. The letter states that if an abortion is the necessary treatment to stabilize the patient, it should be performed.

“When a state law prohibits abortion and does not include an exception for the life of the pregnant woman — or makes the exception narrower than EMTALA’s definition of a medical emergency — that state law prevails,” the letter said.

The department says its guidance does not reflect a new policy, but reminds doctors and providers of existing obligations under EMTALA, which was passed in 1986 and signed by President Reagan.

But Texas officials disagree and are asking a judge to strike down the Biden administration’s guidelines and declare them illegal.

The lawsuit says Biden “blatantly disregards” the legislative and democratic process and that the guidelines force “hospitals and doctors to commit crimes and risk being licensed under Texas law.”

The lawsuit says EMTALA does not mandate, direct or suggest the provision of any specific treatment and says nothing about abortion.

“On the contrary, EMTALA considers a medical emergency to be one that threatens the life of the unborn child,” the lawsuit states. “It is clear that abortion does not preserve the life or health of the unborn child.”

The fall of Roe v. Wade triggered the Texas law that will ban nearly all abortions in the coming weeks. Meanwhile, clinics tried to continue serving patients, but legal battles over whether a 1925 passive abortion ban could be enforced had already stopped most doctors from performing abortions. Abortions will soon be legal in Texas only when the mother’s life is in danger or if she is at risk of “substantial impairment of an essential bodily function.”

The lawsuit says doctors will be forced to choose between violating Texas law or jeopardizing their ability to receive Medicare funds. The lawsuit says the federal guidelines also run afoul of the Hyde Amendment, which generally prohibits the use of federal dollars to fund abortions unless the pregnancy is the result of rape, incest or the woman’s life is in danger.

White House press secretary Karin Jean-Pierre said it was an example of an “extreme and radical” Republican elected official. She added: “It is unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected by US law.”

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