NEW ORLEANS (CN) — Three federal appeals judges heard arguments Tuesday from the state of Texas that enforcing a federal emergency regulation that guides physicians’ decisions will force doctors to perform abortions.
In the wake of the overturn of Roe v. Wade, the Biden administration reminded doctors in emergency situations of their obligation to provide patients with medical treatment that will stabilize them, even if doing so requires performing an abortion.
The Biden administration said the rule isn't new; it has always existed under the federal Emergency Medical Treatment and Labor Act.
Justice Department attorney McKaye Lea Neumeister told the judges Tuesday that the emergency act is simply a reminder and clarification for doctors that they are obligated to act on behalf of patients in emergency situations, even when doing so means violating state law.
Emergency Medical Treatment and Labor Act, she said, “expressly preempts any state law that conflicts with its requirements.”
“Did that come up at any point in Dobbs?” Judge Cory Wilson, an appointee of Donald Trump, asked Neumeister. “That we have this federal agency action that kind of just sweeps [overturning Roe v. Wade] under the rug?”
Neumeister said doctors understand Emergency Medical Treatment and Labor Act to be in effect “regardless of state policy” and it is a general practice for medical agencies to remind physicians that they must follow federal rules over state guidelines. For instance, during Covid-19 and Ebola outbreaks, reminders about the federal law were commonplace.
Natalie Deyo Thompson, arguing for the Texas Attorney General’s Office on behalf of the State of Texas said the federal law goes well beyond Texas law, which allows doctors to save the lives of mothers by requiring doctors to “intervene” if a medical procedure is likely to become an emergency.
The Emergency Medical Treatment and Labor Act, Thompson said, “tells physicians in some cases that they have to perform an abortion,” which she said is not in alignment with Texas’s priorities.
“Texas,” she said, “is in the business of protecting the unborn child.”
Thompson argued that the law is the result of U.S. Secretary of Health and Human Services Xavier Becerra taking a legal stand on abortions and how to allow them.
Seeking to illustrate how physicians have no choice but to operate within state law framework, Thompson posed a situation in which a patient is in dire need of an organ transplant. No one would think that the federal emergency medical law gave the physician permission to steal an organ simply because it was necessary, Thompson said.
Ryan Bangert, who represents anti-abortion medical groups for Alliance Defending Freedom and shared his argument time with the state of Texas, told the judges the Emergency Medical Treatment and Labor Act is a “sweeping order mandating abortions and makes no mention of treating the unborn child.”
Before, we had mandates to save the child, Bangert said, and this one “substantially disrupts” the way his physician clients who are morally opposed to abortion have to operate.
“There is no need for the federal government to address this issue,” Bangert told the judges “because all state statutes say abortion is fine if it saves the life of the mother.”
Bangert said Congress needs to find a “two-patient paradigm” instead of the Emergency Medical Treatment and Labor Act. “The duty is to find specifically for the unborn child,” Bangert told the judges.
In the absence of a two-patient paradigm, Bangert reasoned, if there is no duty to the unborn child, “then EMTALA requires abortion.”
Judge Wilson asked Bangert, “Where do you read that ‘stabilization’ requires abortions?”
“All of my doctors in their declarations,” Bangert replied.
Bangert said the trouble with the law is it “sweeps beyond state mandates” that would already require abortion if the mother’s life were at stake.
“Here, the mandate requires abortion,” Bangert said. “Look at the circumstance under which this mandate was issued – immediately after Dobbs.”
In her rebuttal, Neumeister said the law was originally enacted to address a situation where hospitals were turning patients away or not rendering enough care to stabilize them, in many cases because the patients could not afford to pay.
“It simply doesn’t make sense to say that EMTALA requires certain care when really the statute was to make sure enough care [is given]," Neumeister told the judges. “Congress was trying to make sure that people were receiving adequate care.”
“To the extent that we might agree with you about the injunction being overbroad,” Judge Southwick asked Neumeister, “how would you narrow it?”
If there are abortions that would be medically necessary in Texas, Neumeister replied, then the law would require doctors to provide that care.
She said as of now the federal government can’t be sure physicians are legally able to provide the care they might need to provide, which would have potentially devastating consequences for pregnant women receiving medical care in Texas.
The case was originally in front of U.S. District Judge James Wesley Hendrix in Lubbock, who penned an opinion saying the Biden administration had overstepped its authority. He paused the Emergency Medical Treatment and Labor Act's application in Texas, ruling that the state’s abortion laws are not preempted under the federal act.
The judges did not indicate when or how they will rule on the matter.
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