A federal appeals court on Tuesday ruled that Texas hospitals and doctors are not obligated to perform abortions under a long-standing national emergency-care law, dealing a blow to the White House’s strategy to ensure access to the procedure after the Supreme Court overturned the constitutional right to abortion in 2022.
The federal law “does not mandate any specific type of medical treatment, let alone abortion,” the U.S. Court of Appeals for the 5th Circuit concluded, faulting the Biden administration’s interpretation of the Emergency Medical Treatment and Labor Act, or EMTALA. The law “does not govern the practice of medicine,” the court added.
The three-judge panel also faulted the Biden administration’s process of issuing its emergency-care guidance, saying that federal officials did not go through the proper rulemaking process when the administration instructed health-care providers that they were protected by EMTALA if they believed an abortion to be medically necessary. The panel further said that the federal emergency-care law did not “directly conflict” with a near-total abortion ban in effect in Texas, which was written by the state’s Republican legislators and includes exceptions for medical emergencies.
The White House and federal health officials have invoked EMTALA — the 1986 law that requires hospitals and physicians to treat emergency medical conditions or risk fines, civil lawsuits and being blacklisted from federal health programs — in the wake of the Supreme Court’s June 2022 decision that overturned the national right to abortion and led to about two dozen state bans on the procedure. The Biden administration is now engaged in several lawsuits that are expected to set precedent over whether the emergency-care law applies to abortion access, including the Texas case.
The Department of Health and Human Services on Tuesday night referred questions to the White House, which declined to comment.
Abortion rights advocates in Texas and across the country decried the ruling, which they said signaled a disregard for women in life-threatening pregnancy situations. They also criticized the 5th Circuit, which is widely seen as one of the most conservative courts in the country. Its panels have repeatedly sided with antiabortion advocates.
“Deeply disturbing ruling from the 5th circuit,”
wrote Rochelle Garza, a Democrat who ran for Texas attorney general in 2022 and now serves on the U.S. Commission on Civil Rights. “Hospitals and doctors should not have their hands tied when attempting to provide life-saving care for their patients.”
Sen. Patty Murray (D-Wash.), who has helped lead the
Women’s Health Protection Act — a proposed bill that would guarantee access to abortion across the country — said in a statement to The Washington Post that “every American should be outraged” at Republicans’ efforts to oppose abortion.
“The bottom line is that we need a pro-choice majority in Congress that will restore Roe and every woman’s right to abortion and stop politicians from interfering in private health care decisions that should be made by women and their doctors,” Murray added.
Meanwhile, antiabortion advocates on Tuesday celebrated the ruling, saying it was evidence that the Biden administration had legally overreached.
“Early in 2024, the Court has delivered a big win for babies and mothers by halting a key piece of Biden’s pro-abortion agenda,” Susan B. Anthony Pro-Life America’s state policy director, Katie Daniel, said in a statement. The federal emergency-care law is “no grounds for forcing doctors to carry out abortions even against their better medical judgment,” Daniel added.
Since
Roe v. Wade fell, women with certain life-threatening pregnancy complications have been denied abortion care at some hospitals — with doctors wary of treating them under the new abortion laws. In one case in Oklahoma, a woman was left to wait in her car until she became sick enough to qualify for treatment. In Florida, a woman lost half her blood before she could make it back to the emergency room after being turned away.
While all abortion bans include some kind of medical exception, the language is often vague — with some allowing an abortion in a “medical emergency,” for example, without offering a concrete definition for that term. That ambiguity has left doctors and hospitals unsure of when they can provide medical care, at times
begging for guidance from hospital administrators and national leaders.
The Biden administration has repeatedly emphasized that physicians have a duty under EMTALA to provide abortions when the procedure is needed to stabilize a patient — even if their state said otherwise.
“As frontline health care providers, the federal EMTALA statute protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice,” Health and Human Services Secretary Xavier Becerra
wrote to health-care providers in July 2022, days after
Roe was overturned. “And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person … that state law is preempted.”
Becerra pledged that his agency would “take every action within our authority to protect the critical care that you provide to patients every day.”
The state of Texas quickly sued over the Biden administration’s interpretation of EMTALA, and a federal judge in August 2022
sided with the state and blocked the guidance from taking effect in Texas.
A related case, involving Idaho’s abortion law, is being reviewed by the U.S. Court of Appeals for the 9th Circuit. A decision in that case is expected later this month. A decision on whether to appeal either or both rulings to the Supreme Court will rest with the Justice Department.
Hospital administrators and doctors in antiabortion states say they feel caught between the liability they might face under their state abortion bans and EMTALA — perpetually worried they might make the wrong choice about whether to provide care.
As a result, the Biden administration’s decision to focus on EMTALA does little to help doctors and hospitals, several hospital lawyers and administrators told
The Post late last year.
“It just puts them on notice that you may either be violating state law and get thrown in jail or you may be violating federal law and … could get sued,” said Ellie Schilling, a lawyer who consults on abortion issues with hospitals in Louisiana.
Biden officials and legal observers said they expected Tuesday’s decision, noting that all three judges on the 5th Circuit’s panel were appointed by Republican presidents. Judge Leslie H. Southwick is a George W. Bush appointee, and Judges Kurt D. Engelhardt and Cory T. Wilson are Trump appointees.
