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Judge issues preliminary injunction against  Biden administration abortion rule in Texas 

by | Aug 24, 2022

By Dave Andrusko

On Tuesday U.S. District Judge James Wesley Hendrix agreed with Texas Attorney General Ken Paxton and issued a preliminary injunction prohibiting the Department of Health and Human Services from enforcing the July 11 Emergency Medical Treatment and Labor Act (EMTALA) Guidance and Letter in Texas.

EMTALA is a federal law, enacted in 1986, that requires stabilizing treatment for any conditions that would jeopardize “the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child).”

A previous press release from the Attorney General’s office reads

This Biden Administration’s Abortion Mandate has the effect of requiring doctors and hospitals to choose between performing abortions in violation of State law or caring for women as they always have while incurring fines and the loss of federal funding.

Texas law has long permitted doctors to perform abortions when the life of the mother is at risk. That is still the law. EMTALA does not empower the federal government to change that. EMTALA requires hospitals to treat patients the same regardless of their ability to pay; it does not authorize the federal government to commandeer the practice of medicine.

“While the Biden Administration continues to make up rules that are unconstitutional, I will keep holding them accountable. I will not allow the Biden Administration to threaten doctors and hospitals with this unlawful mandate and put millions of Texans’ access to healthcare on the line.”

Judge  Hendrix crystallized the issues on the opening page of his 67-page opinion and order [https://storage.courtlistener.com/recap/gov.uscourts.txnd.365015/gov.uscourts.txnd.365015.73.0.pdf]:

Does a 1986 federal law ensuring emergency medical care for the poor and uninsured, known as EMTALA, require doctors to provide abortions when doing so would violate state law? Texas law already overlaps with EMTALA to a significant degree allowing abortions in life-threatening conditions’ and for the removal of an ectopic or miscarried pregnancy. But in Dobbs’s wake and in an attempt to resolve any potential conflict  with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing  EMTALA obligations to provide abortions regardless of state law. 

That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law  where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment. As a result, the Court will preliminarily enjoin the Guidance’s enforcement against the plaintiffs.

Judge Hendrix repeatedly emphasized the obligation the doctor has to both mother and unborn child under EMTALA.

“Under HHS’s reading, if the doctor initially determines that the unborn child does not have an emergency medical condition, the doctor must then close his or her eyes to the unborn child’s health for the remainder of the treatment. This directly conflicts with the doctor’s ongoing duty to provide care for both the mother and the unborn child when stabilizing a pregnant woman. Because the doctor has a duty to both, EMTALA does not require the doctor to introduce an emergency medical condition to one in order to stabilize the other. Again, EMTALA does not say how to balance both interests. It leaves that determination to the doctor, who is bound by state law.” 

The Biden Administration is determined to circumvent the June 24th Supreme Court Dobbs decision overturning Roe v. Wade as well as democratically approved state pro-life laws. We are equally determined to stop them in their tracks.

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