Topline

Texas Attorney General Ken Paxton sued The Biden administration Thursday after the White House issued new guidance requiring physicians to perform abortions when medically necessary under federal law, one of the key ways the federal government has sought to blunt the impact of states’ abortion bans after the overturning of Roe v. Wade.

Key Facts

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Texas sued the Department of Health and Human Services, HHS Secretary Xavier Becerra and other federal health officials in federal court over the HHS guidancewhich stated physicians “must provide” abortions when it’s clear it is the “stabilizing treatment necessary” to a patient that’s undergoing a medical emergency.

HHS cited the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals to treat patients suffering from emergency medical conditions, and said the law preempts state law, meaning physicians would be required to perform abortions even when it could violate a state’s ban on the procedure.

If they do not follow the guidance, hospitals risk fines or being no longer able to participate in Medicare and Medicaid programs.

Texas argues EMTALA has no express protections for abortion and HHS is acting unlawfully and exceeding its authority by claiming it does, and asked the court to block the guidance.

As one of the states with an abortion ban in place, Texas argues the guidance violates its state authority and forces hospitals “to choose between violating state law under threat of criminal penalty or jeopardizing their ability to participate in Medicaid.”

HHS has not yet responded to a request for comment.

Crucial Quotes

“No federal statute confers a right to abortion,” the lawsuit states. “EMTALA is no different.”

What To Watch For

The lawsuit will play out in federal court in the Northern District of Texas, where it's been assigned to Judge James Wesley Hendrix, who was appointed by President Donald Trump.

Key Background

The HHS guidance directing physicians to perform abortions is part of the Biden administration's broader response to the Supreme Court overturning Roe v. Wade. The White House has also announced measures like a new federal task force and requiring pharmacies to fill prescriptions for drugs that can end pregnancies, after reports Emerged of Americans being denied medication for conditions like lupus and rheumatoid arthritis because the drugs could also induce miscarriages. The administration can only go so far in protecting abortion rights, however, as the Supreme Court's ruling gave states power to ban the procedure and the executive branch doesn't have the power to impede that. Congress can still pass legislation that would override state bans, however, and President Joe Biden has directed Americans to vote in the midterms to elect a Democratic majority in Congress that can pass federal abortion protections. HHS issued the guidance on performing abortions under EMTALA amid fears that those who are pregnant could suffer and be denied life-saving care in states with abortion bans. Though the laws typically have exemptions in the case of medical emergencies and when the mother's life is at risk, physicians have criticized the legislation for being overly vague, leaving health care providers unsure of at what point abortion is legally permissible.

Hospitals Need To Offer Abortions In Emergencies—Even In States Where It's Illegal, HHS Says (Forbes)

Biden Administration Will Use Medication Abortion, Civil Rights Office To Help Protect Abortion Rights, Health Secretary Says (Forbes)

Overturning Roe V. Wade: Here's How It'll Impact Reproductive Healthcare — Beyond Abortion (Forbes)

Biden Issues Abortion Executive Order—But Doubles Down On Get-Out-The-Vote Message (Forbes)