Judge blocks HHS guidance on abortions as emergency care

Biden administration guidance specifies when to provide abortions during emergency medical situations

The July 11 guidance from Health and Human Services Secretary Xavier Becerra directed hospitals to provide abortions when necessary to stabilize or save the life of a patient facing complications of pregnancy loss, severe preeclampsia or other medical conditions when determined necessary by a physician.  (Tom Williams/CQ Roll Call file photo)
The July 11 guidance from Health and Human Services Secretary Xavier Becerra directed hospitals to provide abortions when necessary to stabilize or save the life of a patient facing complications of pregnancy loss, severe preeclampsia or other medical conditions when determined necessary by a physician.  (Tom Williams/CQ Roll Call file photo)
Posted August 24, 2022 at 2:01pm

A federal judge in Texas late Tuesday blocked guidance from the Department of Health and Human Services directing hospitals to perform abortions when necessary to stabilize or save the life of the mother, a setback for the Biden administration. 

U.S. District Judge James Wesley Hendrix, who is based in Lubbock, granted a preliminary injunction requested by the state of Texas. He wrote in an order that the July 11 HHS guidance, which relied on a longstanding federal law requiring hospitals provide emergency treatment to anyone who needs it, ignores the provisions stating the health of the fetus must be considered. 

“The 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,” wrote Hendrix, a Trump appointee, referring to the 1986 Emergency Medical Treatment and Labor Act, which HHS cited in its guidance. “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.” 

The guidance, which HHS issued last month, will now be on hold while the case plays out in court. 

The HHS guidance interpreted the 1986 law to mean hospitals must provide abortions when necessary to stabilize or save the life of a patient who is facing complications of pregnancy loss, severe preeclampsia, ectopic pregnancies or other medical conditions when determined necessary by a physician. 

Texas Attorney General Ken Paxton sued HHS, arguing the Biden administration was trying to “transform every emergency room in the country into a walk-in abortion clinic.” 

“Another win against Biden,” Paxton tweeted Wednesday.  “A win for mothers, babies, & the TX healthcare industry.” 

Texas noted that its laws banning abortion do not apply if the woman has a “life-threatening physical condition.” 

Major medical groups like the American Medical Association have argued that such state laws are unclear about when exactly an abortion would be permissible. Some states like Texas threaten doctors who perform abortions with civil and criminal penalties, putting a chilling effect on the procedure.

It can be unclear whether an abortion would be permissible if a doctor believes it is necessary to protect a woman’s health but pregnancy would not necessarily result in imminent death.

HHS said it tried to provide more clarity through the guidance while also making the case that EMTALA preempts state laws where it believes the exemptions to save the life of the mother or protect a woman’s health are too narrow. 

“In no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care,” HHS Secretary Xavier Becerra said in a statement announcing the guidance last month. 

The guidance followed the Supreme Court’s June 24 decision to overturn Roe v. Wade, the landmark ruling that established the right to an abortion before fetal viability for 50 years. 

Hendrix wrote in his opinion Tuesday that the HHS guidance extends beyond EMTALA’s authority because it “discards the requirement to consider the welfare of unborn children when determining how to stabilize a pregnant woman.” 

The guidance also “claims to preempt state laws notwithstanding explicit provisions to the contrary,” Hendrix wrote, referring to provisions in Texas law allowing abortions for women with “life-threatening” conditions. HHS also did not follow a notice and comment period as required by the law, Hendrix said. 

The Department of Justice is likely to appeal the ruling. The DOJ sued the state of Idaho over its abortion ban last month, arguing it violates EMTALA by only allowing for abortions when necessary to save the life of the mother but not in cases where patients face other health risks from continuing pregnancies.