December 3, 2023

HOUSTON — Days after the Biden administration moved to ensure access to abortion in certain emergency situations, Attorney General Ken Paxton of Texas on Thursday filed a lawsuit challenging the federal guidance, saying it would “force abortions” in hospitals in the state.

The suit was an opening salvo in what is likely to be a protracted legal tug of war between the administration and states like Texas that have swiftly taken steps to ban abortion in almost all cases in the wake of the Supreme Court’s recent decision to overturn Roe v. Wade.

The suit, which names Mr. Biden’s health secretary, Xavier Becerra, as its lead defendant, grows out of guidance issued on Monday by the federal Department of Health and Human Services. The agency has instructed hospitals that, even in states where abortion is illegal, federal law requires doctors to perform abortions for pregnant women who show up in their emergency departments if they believe it is “the stabilizing treatment necessary” to resolve an emergency medical condition.

“President Biden is flagrantly disregarding the legislative and democratic process — and flouting the Supreme Court’s ruling before the ink is dry — by having his appointed bureaucrats mandate that hospitals and emergency medicine physicians must perform abortions,” Mr. Paxton wrote in a complaint filed Thursday in the United States District Court in Lubbock, Texas.

White House Press Secretary Karine Jean-Pierre responded in a statement citing “yet another example of an extreme and radical Republican elected official.” Without naming Mr. Paxton, the statement said it was “unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected under U.S. law.”

The suit lands amid active discussion among doctors and hospital lawyers across Texas — and other states that have banned all or most abortions — about when the procedure might be permitted in emergencies. Texas’s law allows for exceptions when an abortion would save the pregnant patient’s life or prevent “substantial impairment of major bodily function” — the types of situations that the federal guidance is focused on, although it leaves room for interpretation.

Mr. Paxton has turned frequently to the courts to express his opposition to Mr. Biden’s policies; The Texas Tribune reported in April that he had brought 11 immigration-related suits against the administration. He has also filed or joined a series of suits related to Covid-19 policies, including the administration’s effort to mandate mask wearing and vaccination.

For Mr. Biden, the legal challenge highlights the pressure he is under from all sides in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe. Abortion rights activists and some liberal lawmakers have criticized the president for failing to act swiftly and forcefully enough to the ruling.

Under pressure, Mr. Biden issued an executive order last week directing the Health and Human Services Department and other federal agencies to take whatever steps are possible to do that. But Mr. Becerra has conceded there is no “magic bullet” to preserve or restore abortion access.

Monday’s guidance for hospitals was accompanied by a letter from Mr. Becerra to health care providers, delineating their responsibilities under the Emergency Medical Treatment and Active Labor Act, known as EMTALA, a 1986 law that requires anyone arriving at an emergency department to be stabilized and treated regardless of their insurance status or ability to pay.

Anti-abortion opponents, including Roger Severino, who headed the Health Department’s Office of Civil Rights under former President Donald Trump, have said that the guidance itself violates the law, which specifies that both a pregnant woman and her unborn child must be stabilized. Mr. Paxton made that argument in his filing.

“No federal statute confers a right to abortion,” he wrote. “EMTALA is no different. It does not guarantee access to abortion. On the contrary, EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child.”

But Lawrence O. Gostin, an expert in public health law who has advised the administration, said the new guidance is on “solid legal footing” in asserting that when federal and state laws conflict, the federal law pre-empts that of the state.

“EMTALA was not designed specifically for abortion access, or miscarriage management, but it absolutely includes both of them,” Mr. Gostin said. He said the law would permit an abortion “so long as it was based upon the need to prevent a pregnant woman from having serious health or life-threatening consequences due to her pregnancy.”

The guidance for hospitals was the first of two abortion-related actions that the Department of Health and Human Services has taken this week. On Wednesday, it warned the nation’s 60,000 retail pharmacies that they risk violating federal civil rights laws if they refuse to fill prescriptions for pills that can induce abortion.

That guidance references three drugs — mifepristone, misoprostol and methotrexate — that are often prescribed for other conditions but can also induce abortions. But the guidance was cautiously written, steering clear of telling pharmacies that they are required to provide the drugs for the purpose of abortion.

Experts said the administration was reacting to reports that women of childbearing age are being denied the drugs since the Supreme Court ruling.

“They are doing what they can to clarify what the federal protections are; I think there’s a lot of pressure on them to do that,” said Alina Salganicoff, the director of women’s health policy at the Kaiser Family Foundation, adding, “Lawyers across America are very busy right now trying to advise employers and hospitals and clinicians about what their responsibilities and potential liability is when it comes to abortion.”

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