Fifth Circuit holds that federal ER law doesn't protect abortion care

Under the court's ruling, HHS can't enforce its guidance protecting abortion care in Texas.

The U.S. Court of Appeals for the Fifth Circuit on Tuesday held that federal emergency room protections do not include abortions — even if an abortion is determined to be the medical care necessary to stabilize the patient.

In guidance issued shortly after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the Department of Health and Human Services informed hospitals subject to the Emergency Medical Treatment and Active Labor Act (EMTALA) — basically, all that receive Medicare funds — that they have certain obligations relating to abortion care.

As I summarized at the time, the July 2022 guidance stated:

[Hospitals] must provide appropriate “medical screening examination” and, if an “emergency medical condition” is found, then also provide “stabilizing treatment” or “an appropriate transfer” to a hospital that can do so. If the necessary stabilizing treatment is an abortion, “the physician must provide that treatment,” the guidance states. Finally, the guidance makes clear repeatedly that EMTALA preempts state laws that conflict with EMTALA obligations, including state abortion bans.

On Tuesday, a three-judge panel of the Fifth Circuit upheld an injunction that bars the Biden administration from enforcing that guidance in Texas or against members of two anti-abortion medical organizations.

The ruling means that if a doctor in a Texas emergency room decides a person needs an abortion to stabilize them and it would not be allowed under Texas’s more-limited exceptions to its abortion ban, Texas law controls and the abortion is banned. Even outside of Texas, under the ruling, HHS cannot enforce the guidance against members of the two anti-abortion medical groups.

Judge Kurt Engelhardt, a Trump appointee, authored the panel opinion. The other two panel members were Judge Leslie Southwick, a George W. Bush appointee, and Cory Wilson, another Trump appointee.

Texas law “prohibits abortions unless the pregnancy ‘places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function,’” as Engelhardt explained. Under the ruling, then, any patient with an “emergency medical condition” that could require abortion as a “stabilizing treatment” under EMTALA cannot get that abortion in Texas if it would not be covered by the Texas exception.

The decision came as a case that looks like a mirror image of this one — in which DOJ sued Idaho and won in the district court — is on appeal before the U.S. Court of Appeals for the Ninth Circuit. There, a lower court blocked Idaho from enforcing its near-total abortion ban insofar as it conflicts with EMTALA. Idaho has asked the Supreme Court to allow it to fully enforce the abortion ban, regardless of EMTALA, during the appeal, but the Supreme Court has not ruled on the request.

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A Fifth Circuit decision

In the Fifth Circuit panel’s ruling, Engelhardt sums up the issues on appeal as follows:

The court answered the first question yes and the rest of the questions no — leaving the injunction in place. Engelhardt reached that conclusion based on several questionable grounds, but I’d like to focus on the main issue — whether the guidance is consistent with EMTALA — and two of the most questionable grounds for reaching its decision.

First, those most questionable grounds.

The first was the court’s answer regarding whether the guidance is new. The Justice Department has argued — since August 2022 — that the July 2022 guidance wasn’t new. This is important for several reasons, including whether the guidance is even subject to court review.

Now, it’s true that HHS used some different language in 2022 than in earlier guidance, but that was because of Dobbs. Before Roe v. Wade was overturned, the federal government didn’t need to remind hospitals of their obligations regarding emergency abortion care because there weren’t potentially conflicting state laws. The Fifth Circuit opinion doesn’t even dispute that. Instead, Engelhardt and the Fifth Circuit used that to create a convenient reality.

“Put simply, the Guidance sets out HHS’s legal position—for the first time—regarding how EMTALA operates post-Dobbs,” Engelhardt wrote. “The Guidance is new policy; it does not ‘merely restate’ EMTALA’s requirements.”

The logic of Fifth Circuit’s ruling could render all guidance “new” if it follows a Supreme Court ruling that changed related rights or laws. The “related” is important here. DOJ is not issuing new guidance in response to a court ruling on EMTALA. It was, rather, issuing guidance to remind hospitals of their existing obligations under EMTALA because Dobbs was going to be leading to changes in other laws.

The second questionable ground for the court’s ruling I want to highlight is its decision that EMTALA creates a “dual requirement” that obligates stabilizing care to be provided both to a pregnant person and, as referred to in the law, an “unborn child.” Engelhardt wrote:

This is sloppy legal work at best, intentionally misleading at worst.

DOJ has pretty clearly laid out the “congressional history” in its legal arguments. In writing about the Idaho case, I addressed this issue specifically, noting that DOJ explained:

“Three of those references [to “unborn child”] address possible harm to an “unborn child” only when considering transfer of a pregnant individual in labor.” And the fourth was an effort to clarify additional coverage to a pregnant person because, initially after EMTALA’s passage, “any risks to the ‘unborn child’ were relevant only to determining whether a patient was in ‘active labor.’” The amendment expanded when risks to the fetus could be considered, but, DOJ wrote, “this insertion did not alter EMTALA’s basic operation: what must be stabilized is the ‘medical condition’ … of the ‘individual’“ — as in, the pregnant person.

In short, this is not what Idaho and now the Fifth Circuit say it is. There is no “dual requirement” — except insofar as it would stop a hospital from being able to transfer a patient in labor due to concerns about the potential harm to the fetus if transfer was ordered.

While there are many complicated administrative law issues swirling around this case — and its companion case out of Idaho — the main question comes down to whether the HHS guidance is consistent with EMTALA.

“EMTALA does not mandate any specific type of medical treatment, let alone abortion,” Engelhardt wrote, adding that “EMTALA does not impose a national standard of care” and highlighting the fact that “medical treatment is historically subject to police power of the States.”

None of that resolves anything, however, because DOJ isn’t arguing otherwise.

And yet, a key statement in the middle of that section of the opinion summarizes the court’s view: “A medical provider can … comply with both EMTALA and state law by offering stabilizing treatment in accordance with state law.”

In other words, according to the Fifth Circuit, a provider does not have to stabilize the patient if the state outlaws stabilizing the patient.

The court continues from there, but that conclusion drives the remainder of the decision. This is particularly so when combined with its “dual requirement” logic, which the court uses to dismiss any possible argument that abortion care can be seen as required by federal law — and hence in conflict with a state law that restricts such care.

The court summed up this aspect of the ruling, which ultimately controlled the decision, as such:

It was not immediately clear whether DOJ will appeal. Due to the ongoing Idaho litigation, however, it’s almost certain that — in one form or another — this issue will be reaching the Supreme Court, and not just on the shadow docket, sooner or later, regardless of what DOJ does next in this case.