(CN) — A federal law requiring hospitals to provide emergency stabilizing treatment to patients “does not provide an unqualified right for the pregnant mother to abort her child,” as it requires the health care providers to stabilize both the woman and her unborn child, a Fifth Circuit panel said Tuesday.
Two weeks after the Supreme Court’s conservative supermajority nixed the federal right to abortion and returned the issue to the states with its Dobbs decision in June 2022, the Centers for Medicare and Medicaid Services and Department Health and Human Services Secretary Xavier Becerra stepped into the fray.
They issued guidance on the agency’s website and sent letters to state health care agencies, outlining their belief that when a pregnant woman is experiencing a grave medical condition as defined by Emergency Medical Treatment and Labor Act of 1986, and an abortion is the stabilizing treatment needed to resolve the condition, doctors must provide that treatment.
Warning that scofflaw physicians could face civil penalties and be excluded from caring for Medicare patients, the guidance also said when a state law bars abortion and does not include an exception for the mother’s life, or construes the exception more narrowly than the Emergency Medical Treatment and Labor Act's definition of an emergent medical condition, the state law is preempted.
Becerra and his agency were trying to get ahead of so-called trigger laws that several Republican-led states had passed to roll back abortion access as soon as the Supreme Court struck down Roe v. Wade, its 1973 decision that legalized abortion nationwide.
The Lone Star State’s trigger law, the Texas Human Life Protection Act, took effect Aug. 25, 2022, barring the procedure unless the pregnancy places the mother at risk of death or “poses a serious risk of substantial impairment of a major bodily function” to her.
With no exceptions for incest or rape, Texas’ abortion ban is one of the strictest in the U.S. as doctors who violate it can be sentenced to up to 99 years in prison, have their medical licenses revoked and be fined $100,000.
Texas’ Republican Attorney General Ken Paxton promptly sued the Biden administration over its guidance and was joined in the challenge by the American Association of Pro-Life Obstetricians & Gynecologists and the Christian Medical & Dental Association.
U.S. District Judge James Wesley Hendrix, a Trump appointee, ruled in favor of Texas and the associations.
He agreed with them that Health and Human Services’ guidance exceeded its statutory authority and blocked the agency from enforcing the guidance within Texas or against members of the plaintiff associations.
The Biden administration appealed to the Fifth Circuit and a three-judge panel of the New Orleans-based appellate court heard arguments in November, including from Ryan Bangert, who represents the anti-abortion plaintiff associations for the Alliance Defending Freedom — a Christian conservative legal group that is leading the charge in litigation seeking to stop use of the abortion drug mifepristone.
Bangert, a former Texas assistant attorney general, argued the Emergency Medical Treatment and Labor Act is a “sweeping order mandating abortions and makes no mention of treating the unborn child,” and “there is no need for the federal government to address this issue because all state statutes say abortion is fine if it saves the life of the mother.”
In the hearing, Texas Assistant Solicitor General Natalie Thompson also focused on fetuses, stating, “Texas is in the business of protecting the unborn child.”
Justice Department attorney McKaye Neumeister countered that the guidance was merely a reminder that doctors must care for patients in emergency situations, even when doing so violates state law.
She also stressed that the Emergency Medical Treatment and Labor Act does not require abortions, noting that Congress passed it to stop hospitals from turning away patients who cannot afford to pay for their emergency health care.
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