Texas Sues HHS, Says Biden Admin. Trying to ‘Transform Every Emergency Room in the Country into Walk-In Abortion Clinic’

By Ben Kelley | July 21, 2022 | 2:45pm EDT
(Getty Images/Mark Wilson)

The State of Texas, led by Texas Attorney General Ken Paxton, has sued the Department of Health and Human Services (HHS) over its attempt to “transform every emergency room in the country into a walk-in abortion clinic.”

The lawsuit, filed on July 14th, claims that “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.”

The administration’s directive, released on July 11th, is a clarification of the Emergency Medical Treatment and Active Labor Act (EMTALA), a law that forces hospitals to treat patients regardless of their ability to pay and protects doctors from being prosecuted under state laws if they perform a procedure that they deem necessary to save a patient from death or serious injury in an emergency situation.

HHS Secretary Xavier Becerra’s letter says that “emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.”

Becerra’s letter goes on to state that an abortion may be an appropriate stabilizing treatment for pregnant patients with an emergency medical condition:

“When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person - or draws the exception more narrowly than EMTALA’s emergency medical condition definition - that state law is preempted.”

Paxton’s lawsuit disagrees with this assertion: “To the contrary, EMTALA ‘do[es] not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of EMTALA.’”

EMTALA does not codify any right or access to abortion, so there is no direct conflict between EMTALA and a state law banning abortion, the suit alleges. Furthermore, the text of EMTALA specifically defines “emergency medical condition” to include threats to the health of a woman’s unborn child. Abortion threatens the health of unborn children.

Texas’ complaint against HHS continues by citing court precedents, such as Eberhardt v. City of Los Angeles, that establish that EMTALA does not force hospitals to provide specific procedures, but simply prevents them from refusing “emergency medical care because of a patient’s inability to pay.”

The HHS directive comes as a response to last month’s decision in Dobbs v. Jackson Women’s Health, which overturned the constitutional protection for abortion established by the 1973 case Roe v. Wade.

In 2021, Texas passed a law that “prohibits abortions in most circumstances and takes effect on the 30th day after ‘issuance of a United States Supreme Court judgment in a decision overruling, wholly or partly, Roe v. Wade.’” That law has yet to take effect, but will, barring the passage of a law that repeals the ban.

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