Topline
Doctors in Texas are no longer required to perform abortions when medically necessary under federal law, as a federal judge blocked late Tuesday the Biden Administration’s guidance requiring hospitals in the state to perform abortions in medical emergencies even when it conflicts with the state’s abortion ban—though he declined to block the guidance nationwide.
Abortion rights activists march to the White House on July 9 in Washington, D.C.
Key Facts
Texas sued the Biden Administration after it released guidance for healthcare providers in July stating they “must provide” abortions when it’s medically necessary under the federal Emergency Medical Treatment and Active Labor Act (EMTALA)—even if a state’s abortion ban would otherwise prohibit the procedure in that instance.
U.S. District Judge James Wesley Hendrix sided with Texas and issued a preliminary injunction that blocks the guidance as the case moves forward, but only as it applies to Texas and doctors who are members of two anti-abortion medical groups and not nationwide.
That means doctors in other states, unless they belong to one of those two medical groups, will still have to comply with EMTALA and provide abortions when necessary.
Hendrix ruled that the Biden Administration’s guidance “extends beyond” what EMTALA actually says, and said the administration should have had a period where the guidance was subject to public comments before it went into effect.
The Department of Health and Human Services, which issued the guidance, has not yet responded to a request for comment.
What To Watch For
Texas’ “trigger ban” outlawing abortions will take effect on Thursday, which outlaws all abortions except in cases where the pregnant person’s life is at risk or there’s “a serious risk of substantial impairment of a major bodily function.” Texas already bans abortion under a 1925 law that was allowed to go back into effect, but the trigger law will increase the criminal penalties for performing an abortion against the law by making performing an abortion a first degree felony (assuming the fetus dies) punishable by up to a life sentence in prison.
What We Don’t Know
What other courts will say about EMTALA and abortion. The Biden Administration has separately sued Idaho over its abortion ban, arguing that it conflicts with EMTALA, and a federal judge signaled during a hearing Monday he’s likely to side with the federal government and temporarily block the law as it applies to abortions during medical emergencies. That ruling is likely to come on Wednesday. The Idaho lawsuit is so far the only one the Biden Administration has filed against a state abortion ban, but it could file more in the future that allege a conflict under EMTALA.
Key Background
The Biden Administration issued its guidance requiring abortions under EMTALA amid numerous reports that state abortion bans have resulted in pregnant people not receiving emergency medical treatment even when they face complications or miscarriages. The guidance requires hospitals to provide abortions as a “stabilizing treatment” if it’s necessary for the pregnant person’s health, even if the risks are not life-threatening, and puts hospitals at risk of facing fines or losing their partnership with Medicare if they don’t comply. The HHS guidance has been one of the key parts of the Biden Administration’s response to the Supreme Court overturning Roe v. Wade and the state abortion bans that have ensued, along with multiple executive orders that help ensure patient privacy, provide legal support for people seeking and providing abortions and direct Medicaid funds to be used to pay for out-of-state travel for abortion care.
Further Reading
Texas Sues Biden Administration For Requiring Abortions To Be Performed During Medical Emergencies (Forbes)
Hospitals Need To Offer Abortions In Emergencies—Even In States Where It’s Illegal, HHS Says (Forbes)
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