The guidance amounts to an abortion mandate and is illegal because it violates multiple laws, Texas Attorney General Ken Paxton, a Republican, said.
The guidance (pdf) was promulgated on July 11 by the Centers for Medicare & Medicaid Services, part of the U.S. Department of Health and Human Services (HHS).
It tells state survey agency directors that under the Emergency Medical Treatment and Labor Act (EMTALA), a doctor at an emergency department who is presented with a pregnant woman who has an emergency medical condition “must” perform an abortion if the abortion is a necessary “stabilizing treatment.”
The abortion must be done even in states where the law “prohibits abortion and does not include an exception for the life and health of the pregnant person,” the guidance says. “That state law is preempted.”
HHS Secretary Xavier Becerra, on the same day, told health care providers across the nation that “stabilizing treatment” could include abortion, “irrespective of any state laws or mandates that apply to specific procedures.” He said in the letter (pdf) that per the emergency labor act, the physician “must provide” an abortion in certain cases.
Texas officials see the situation differently.
Abortions Not Required by Law
“The Abortion Mandate requires that a provider perform an abortion if ‘abortion is the stabilizing treatment necessary to resolve [an emergency medical condition].’ This condition has never been a part of EMTALA,” they said in a 20-page suit, filed in federal court in Lubbock.
EMTALA “does not mandate, direct, approve, or even suggest the provision of any specific treatment” and, “says nothing about abortion,” they added.
The guidance violates Texas’s sovereignty, according to the suit.
Plaintiffs say defendants lack the authority to amend EMTALA and that the order violates multiple federal laws. Officials also illegally issued the rule without alerting the public and soliciting comment, which violates the Administrative Procedure Act, according to the suit.
Texas officials are asking the court to hold the guidance unlawful and issue injunctions preventing the U.S. government from enforcing it.
HHS did not immediately respond to a request for comment.
The guidance came shortly after President Joe Biden, a Democrat, signed an executive order directing Becerra, the HHS secretary, to within 30 days identify how to make sure that patients “receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act.”
Biden’s order, in turn, was signed weeks after the U.S. Supreme Court struck down Roe v. Wade, ruling the 1973 decision was not constitutionally sound. The ruling returned the ability to fully regulate abortions back to states.
The majority opinion said that “the Constitution does not confer a right to abortion” and “does not prohibit the citizens of each State from regulating or prohibiting abortion.”
“This administration has a hard time following the law, and now they are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions,” Paxton said in a statement.
“I will ensure that President Biden will be forced to comply with the Supreme Court’s important decision concerning abortion and I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda,” he added.