The Biden administration’s instruction that hospitals and doctors nationwide provide emergency abortion care faces a significant test from competing lawsuits in Texas and Idaho, which could leave physicians confused and patients in danger, legal observers said.
Texas asked the US District Court for the Northern District of Texas to block the recent guidance, arguing that it’s an “abortion mandate” that unlawfully attempts to preempt state law. The American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical & Dental Associations have already joined the suit, and other states with strict anti-abortion laws are likely to join Texas or file their own lawsuits.
The Department of Justice followed that action by initiating its own lawsuit in Idaho making the opposite argument: that Idaho’s anti-abortion law is unlawful because federal law preempts state law. When Idaho’s law takes effect later this month, it will allow any doctor to be prosecuted for performing an abortion, regardless of the circumstances. The lawsuit is the first time the Biden administration is playing offense against a state abortion law since the US Supreme Court overturned Roe v. Wade.
The guidance from the Department of Health and Human Services restates a doctor’s obligation under the decades-old Emergency Medical Treatment and Labor Act. The statute states that when a state law directly conflicts with its provisions, EMTALA prevails. The Biden administration also has the Supremacy Clause of the US Constitution, which says that federal law trumps conflicting state law, behind it, lawyers said.
Biden’s team is scrambling to combat the Supreme Court’s decision with concrete steps to protect reproductive health access. With Democrats seeming to lack the votes to pass any substantive legislation, many of these actions will come from similar guidances and rulemaking. But the Biden administration must carefully balance its desires with the risks of inviting litigation, which could leave the executive branch with less power.
Now the preemption question sits before two federal courts. The Texas case will be heard by Judge James Wesley Hendrix, a Donald Trump-appointee. The Idaho case targets the anti-abortion law that most clearly conflicts with EMTALA due to its narrow emergency exemptions. It will be heard by Judge B. Lynn Winmill.
“I wouldn’t be able to guess what will happen, not because of what’s right in the law,” said Seema Mohapatra, a professor at Texas’ SMU Dedman School of Law. The federal courts are packed with “ideological appointees that are not necessarily interpreting the law the way that we would have thought it would be interpreted,” she said.
The Emergency Medical Treatment and Labor Act, which “has labor in its name,” was enacted to prevent patients from being turned away based on their ability to pay, Mohapatra said.
The law states that emergency rooms must screen patients and requires them to be stabilized if a physician finds they have an “emergency medical condition.”
“An emergency medical condition is pretty serious,” said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law. “A lot of us go to the ER for conditions that would not meet the definition.”
The HHS’s definition is a condition so severe that it could put the health of an individual “in serious jeopardy,” or impair bodily functions or organs without immediate treatment. For a pregnant person, this could include an ectopic pregnancy, complications from a miscarriage, or preeclampsia.
“It doesn’t mean that an otherwise healthy pregnant woman who shows up to an emergency department can claim an entitlement to an abortion,” said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University.
Abortion laws in all 50 states have exemptions if the life of a pregnant person is at risk. But some laws, like Texas’s and Idaho’s restrictive anti-abortion laws, are more narrow than EMTALA’s requirements.
Doctors would be exempt from Texas’s law if they provided an abortion to treat an ectopic pregnancy or miscarriage. In Idaho, they could only provide an abortion if it was necessary to “prevent the death of the pregnant woman,” according to the Biden administration’s complaint. Neither state’s law contains the general provision about jeopardizing the health of an individual, thus putting them at odds with EMTALA.
Its hard to say what conditions might be required under EMTALA’s “health” provision. “What may jeopardize the health of the woman in one doctor’s perspective may be different than a doctor in a hospital across the street,” said John Seago, president of Texas Right to Life.
In Doe v. Bolton, a 1973 case, the Supreme Court decided that a physician should consider all aspects of a patient’s health—"physical, emotional, psychological, familial, and the woman’s age.”
‘Iron-Clad Legal Principle’
Gostin said he’s been skeptical of many of the options advocates and the Biden administration have been considering to protect reproductive health care, like a federal public health emergency. “The one area where I feel the president is on strong legal and public health grounds is EMTALA,” he said.
EMTALA is based on “an iron-clad legal principle” that when there’s a conflict between federal and state law, federal law prevails, Gostin said.
Texas is arguing that there isn’t a clash with its law because EMTALA “confers no right to any specific treatment,” according to the complaint.
“That is clearly wrong,” Sepper said.
But the 10th Amendment says powers not granted to the federal government are reserved for states. “The sovereign right to enforce its criminal laws is the epitome of Texas’s police power,” the complaint said.
“I am skeptical that the EMTALA legislation can be construed to require an action that is criminal under state law,” said James Blumstein, a professor at Vanderbilt Law School.
Courts generally presume against preemption in matters within local control, “and abortion is something that is clearly now under local control,” Blumstein said.
Others are confident that the judgment Texas seeks “would not be consistent with our normal rules of preemption,” Mohapatra said.
“EMTALA clearly requires emergency departments to stabilize patients, prevent deterioration of their health, and save their lives. If abortion services are the only way to prevent a deterioration of health or save the life of the woman, it must provide those services notwithstanding state law,” Gostin said.
First of Many Legal Challenges?
The Biden administration’s lawsuit against Idaho is “likely the first of many to assert federal preemption of state anti-abortion laws,” Mohapatra said.
Still, the judge assigned to the case in Texas could enjoin the guidance for the state if they agree with the state’s legal reasoning, which could spark copycat litigation, Sepper said.
If the cases result in a circuit split, they may “find their way right back before the same six justices that decided Dobbs,” Gostin said. “It’s very difficult to tell how they would decide that case.”
Texas’s lawsuit is already causing “precisely what the HHS guidance was meant to avoid, which is delay and confusion in an emergency department,” Mohapatra said.
People across the US are seeing delays for miscarriage care as doctors consult legal professionals about whether a patient’s health is in sufficient enough jeopardy to warrant an abortion.
Blumstein said if he were a doctor and asked to perform an abortion that was criminal under state law, “I would say, ‘Find another doctor.’”