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Texas sues Biden administration over emergency abortion guidance

The Lone Star State's top attorney argues a 1986 law requiring hospitals to provide care in an emergency does not apply to abortions.

AUSTIN, Texas (CN) — Texas Attorney General Ken Paxton filed a 20-page federal lawsuit Thursday challenging President Joe Biden’s recent executive order aimed at protecting access to abortions in the post-Roe v. Wade era.

The lawsuit argues that the president and Xavier Becerra, secretary of the Department of Health and Human Services, acted outside of their legal authority when they said hospitals must legally provide abortions in life-threatening situations. 

“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,” said Paxton, a Republican, in a statement.

Last Friday, Biden signed the executive order calling on the Department of Health and Human Services to affirm that under the Emergency Medical Treatment and Labor Act, or EMTALA, hospital staff and physicians have the legal authority to provide abortions to patients in life-threatening situations. 

Paxton, who is running for reelection against Democrat Rochelle Garza, argues that the 36-year-old law does not authorize hospitals to provide abortions. 

“EMTALA does not mandate, direct, approve or even suggest the provision of any specific treatment,” the lawsuit states. “It says nothing about abortion.”

Because the statute does not explicitly permit abortion as a treatment, Paxton sees Biden's executive order as an attempt to circumvent Congress and establish a right where there was not one already.

The lawsuit argues "the standard of medical care is determined by the state and the community in which the treatment took place" since the law does not name specific treatments that are warranted in emergency situations.

Enacted in 1986, EMTALA requires Medicare hospitals to provide medical screenings to all patients. If an emergency medical condition is discovered during the examination, the hospital must provide care to stabilize the patient. 

On Monday, Becerra announced new guidance for health care providers on how the statute applies to abortion care.

“If a physician believes that a pregnant patient... is experiencing an emergency medical condition as defined by EMTALA and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the HHS secretary wrote in a letter to health care providers.

Contrary to Becerra's interpretation, Paxton argues that EMTALA is more directed at providing care to save the life of the unborn child. Because an abortion would end the life of the child, the procedure cannot be permitted under the act, he argues.

Additionally, Texas' complaint contends that the new guidance violates the 10th Amendment because the issue of abortion is up to the states since it is not addressed in the U.S. Constitution, echoing the view of the U.S. Supreme Court's majority in the June 24 decision striking down the constitutional right to abortion previously established in 1973's Roe ruling.

Paxton is seeking a declaratory judgment that the Biden administration’s guidance on EMTALA is unlawful and unenforceable. The attorney general has also requested that the administration be permanently enjoined from enforcing its new guidance.

Neither Biden nor Becerra has responded to Paxton’s suit. 

The lawsuit was filed in the federal court located in Lubbock, a city known for being staunchly anti-abortion. Last year, voters approved an ordinance banning the procedure. Planned Parenthood and a Lubbock doctor sued the city to block the ordinance from taking effect, but the lawsuit was dismissed for lack of jurisdiction.

Texas is just one of many states that have passed laws outlawing abortion. Its so-called trigger ban will take effect 30 days after the Supreme Court issues its judgment in Dobbs v. Jackson Women’s Health Organization. Supreme Court opinions are not the final word in cases. Litigants who lose at the high court can file motions for reconsideration and only after it disposes of those motions does it issue its judgment.

Abortion providers in Texas have ceased offering the procedure after the Texas Supreme Court ruled that a 1925 law criminalizing the procedure is still enforceable. Many women in Texas have begun traveling out of the state to attain the procedure. 

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