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The Biden administration's emergency care abortion guidance goes to court(s)
Texas says the guidance is "subverting the Supreme Court's holding in Dobbs," even as Idaho, also fighting the administration, says that claiming a "wide and deep conflict" is a "false picture."
EMERGENCY CARE CASES: Over the course of the next week, two cases — one out of Idaho and the other out of Texas — will put the Biden administration’s guidance regarding required abortion-related care under the Emergency Medical Treatment and Labor Act (EMTALA) to the test.
If you were to read the briefing in both cases, however, you’d be forgiven if you were confused about the scope of the Biden administration’s guidance.
From the Idaho briefing, you are left thinking this is small potatoes: The state legislature argues that the conflict between state and federal law is nonexistent. The federal guidance is so narrow that it doesn’t change anything, they say: The “scope of what is at stake here” is a thimble, the lawmakers argue, adding, “And worse, the thimble is empty.” Head south, and “everything’s bigger in Texas” applies, as the state argues that what it calls the “Abortion Mandate” is extreme, violates the U.S. Constitution, and violates the religious liberty of anti-abortion Texans, among other claims.
“Defendants are hinging hundreds of billions in federal Medicare dollars on compliance with this mandate for the sole purpose of subverting the Supreme Court’s holding in Dobbs and States’ authority to regulate abortion,” Texas claims.
The Health and Human Services Department’s post-Dobbs EMTALA guidance — which DOJ notes is not even new, as it is virtually the same as September 2021 guidance — states that hospitals subject to EMTALA (basically, all that receive Medicare funds) have certain obligations. They 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.
The cases at issue — one brought in Texas against the Biden administration and one brought against Idaho by the Biden administration — basically raise the same question, albeit in different contexts that partially go to explaining the different characterizations of the guidance.
In Texas, the state has sued and is asking for a federal court to stop enforcement of the guidance against its most restrictive abortion ban, a trigger ban set to go into effect on Aug. 25. Under the ban, performing an abortion would be a first-degree felony, with a possible sentence of life in prison. The only exceptions are when there is risk of “death or … a serious risk of substantial impairment of a major bodily function” to the pregnant person. Texas claims that the HHS guidance violates several constitutional provisions — the Spending Clause, the “Major Questions” doctrine, the Tenth Amendment — and federal requirements for new rules. Texas also makes a religious liberty claim — citing a federal law, the Religious Freedom Restoration Act (RFRA), but putting it in the section of their brief detailing alleged constitutional violations.
In Idaho, on the other hand, the Biden administration is asking a federal court to limit enforcement of that state’s trigger ban insofar as it would violate EMTALA, with claims that the ban would leave women and other pregnant people unsure of their protections and leave doctors uncertain of which law to follow at times. That trigger ban — which would make performing an abortion a felony, with a minimum two-year prison sentence — also is due to go into effect on Aug. 25. The exceptions are for risk of death to the pregnant person or where the person has reported a rape or incest to law enforcement. In a brief filed on Aug. 16 by state lawmakers, they argue that the “wide and deep conflict” claimed by DOJ between EMTALA and the Idaho ban isn’t so. “False picture,” the lawmakers retort, going on to argue that there is, essentially, no conflict. “The thimble is empty,” they continue in expanding upon the metaphor from their introduction.
Legally, then, the states’ different arguments make sense: Texas’s lawyers want to make as big a deal as they can of the guidance to get it thrown out, and Idaho’s lawyers want to make as small a matter out of the guidance as they can so as to keep their law unimpeded.
And yet, the two states are addressing the same federal guidance, with similar abortion bans. So, at least one of them is wrong — and maybe both of them.
For the Biden administration’s part, it tries to thread this needle — and claim that both are wrong — by arguing first that Idaho’s ban would result in conflicts with EMTALA’s requirements and then that Texas presents no “concrete conflict” between the guidance and Texas law in any way that “invalidation of the guidance would remedy.” That is key and is so, DOJ presses, because the guidance isn’t what creates the obligation on the hospital — it’s EMTALA. In other words, even if a court were to block enforcement of the guidance, HHS and DOJ’s position would remain the same because of the statute itself: The hospital would have to provide the examination and treatment or transfer, regardless of conflicting state laws.
In the Texas case, Texas v. Becerra, U.S. District Judge James Wesley Hendrix on Tuesday morning set a hearing in the case for 1 p.m. CT Thursday. Hendrix is a Trump appointee — although he was first nominated for a judgeship by former President Obama in 2016. He was a federal prosecutor before becoming a judge. In addition to their cases, Hendrix specified in Tuesday’s notice that he wants the parties to be ready to answer a series of questions at Thursday’s hearing:
In the Idaho case, United States v. Idaho, U.S. District Judge B. Lynn Winmill has ordered the parties to finish briefing this week, including a dispute related to witnesses, with a hearing scheduled for 9 a.m. CT Monday, Aug. 22. Winmill, a Clinton appointee, took senior status a year ago Tuesday after more than 25 years of active service on the federal bench.
Regardless of the rulings from the district courts, we could easily see these cases go in quick succession to the appeals courts — the Idaho case would initially go to the U.S. Court of Appeals for the 9th Circuit and the Texas case to the U.S. Court of Appeals for the 5th Circuit — and the U.S. Supreme Court, given the Aug. 25 effective date of the trigger bans.
Law Dork, with Chris Geidner, is independent, reader-supported journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a free or paid subscriber today.