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Clashing Abortion Rulings Crimp Biden’s Response to High Court (1)

Aug. 25, 2022, 3:44 PMUpdated: Aug. 25, 2022, 4:12 PM

Conflicting decisions in Texas and Idaho on President Joe Biden‘s efforts to overpower restrictive state laws and ensure access to abortions in medical emergencies highlight the president’s already limited options to respond to the overturning of Roe v. Wade in states without friendly judges.

A 67-page order, issued by US District Judge James Wesley Hendrix in the Northern District of Texas on Tuesday, stops Biden for now from enforcing in Texas his directive that emergency abortions for medical reasons take priority over state bans on such procedures. A day later, US District Judge B. Lynn Winmill in Idaho said that federal law supersedes that state’s restrictions.

The two cases ask different legal questions: the Texas opinion revolves around matters of administrative law, while the Idaho case tests whether federal law overpowers state criminal law.

The clashing opinions could, if upheld on appeal, send the issue to the same Supreme Court that overturned Roe v. Wade in June, health and administrative law attorneys said. In the meantime, the Texas judge, an appointee of former President Donald Trump, took a swipe at Biden’s ability to guide medical professionals on how to provide reproductive health care.

The Justice Department “will continue to use every tool at its disposal to defend the reproductive rights protected by federal law,” Attorney General Merrick Garland said in a statement Wednesday night, adding that he is considering “appropriate next steps” on the Texas ruling.

Both cases stemmed from Biden’s attempt to invoke the Emergency Medical Treatment and Labor Act, a 1986 law ensuring emergency medical care for the poor and uninsured, to justify access to abortions in medical emergencies. Hendrix found that the law doesn’t explicitly mention abortion so it doesn’t preempt Texas law, while Winmill, an appointee of President Bill Clinton, found the law has to do with emergencies and does preempt Idaho law.

Limited Options

Biden and congressional Democrats are under pressure from progressives to enact new policies to ensure Americans retain access to abortions in states that have restricted the procedure since the fall of Roe.

But Biden’s options without Congress are sorely limited. Without the votes to pass legislation, his team turned to regulation and federal guidance on reproductive health-care at hospitals, pharmacies, and physicians’ offices that receive federal funding. He’s also called on Americans to vote for representatives that support abortion access.

In preventing Biden from enforcing the guidance in Texas, the judge may have helped Biden’s strategy to energize pro-choice voters.

The Biden team’s choice to keep abortion access in the news through lawsuits “even if they’re losing, is a politically smart decision,” said Greer Donley, a University of Pittsburgh professor who studies abortion and the law.

Biden’s preliminary defeat in Texas could make doctors more fearful of the legal repercussions of providing abortions, said Allison Hoffman, a health law professor at the University of Pennsylvania Carey Law School. But the judge merely halted the administration’s ability to enforce the guidance in Texas, not “the federal government’s ability to enforce the statute,” Hoffman said, so the protections EMTALA offers doctors are still in effect.

If the Department of Health and Human Services appeals the Texas federal judge’s decision, it would be heard by the Fifth Circuit, which has 12 judges appointed by Republican presidents out of 17 active judges.

The Ninth Circuit would hear an appeal if Idaho files one. The appellate court has 16 judges appointed by Republican presidents out of 29 active judges.

Different Judges

Separately from the legal challenges to abortion laws, Biden health officials said in July that pharmacists who refuse to fill medications for miscarriage management may be violating federal anti-sex discrimination laws. The guidance applies to roughly 60,000 retail pharmacies across the US that receive federal financial assistance.

The same officials issued separate guidance after Texas adopted its strict abortion limits last year. Health-care providers screen and stabilize patients regardless of “any state laws or mandates that apply to specific procedures,” according to the memo.

Conservative politicians and the judges they appoint have historically pushed back on presidents issuing guidance, saying such documents circumvent the need to collect input from the public. A Fifth Circuit judge in June, for example, reprimanded the Centers for Medicare & Medicaid Services’ guidance on its Covid-19 vaccine mandate for health-care workers.

“What we’re seeing more now is not as much of the legal failings of the administration’s position,” said Seema Mohapatra, a health law professor at Southern Methodist University, on Wednesday ahead of the Idaho order. “We’re seeing the way that different judges are interpreting things.”

(Updated with additional reporting.)

To contact the reporters on this story: Courtney Rozen in Washington at crozen@bgov.com; Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com