(The Center Square) – Texas Attorney General Ken Paxton has sued the Biden administration for using the Emergency Medical Treatment and Active Labor Act (EMTALA) to require hospitals to perform abortions in an attempt to override Texas law banning most abortions.
A new directive issued by the administration seeks “to transform every emergency room in the country into a walk-in abortion clinic,” Paxton said.
“This administration has a hard time following the law, and now they are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions,” he said. “I will ensure that President [Joe] Biden will be forced to comply with the Supreme Court’s important decision concerning abortion and I will not allow him to undermine and distort existing [state] laws to fit his administration’s unlawful agenda.”
Paxton sued HHS Secretary Xavier Becerra, two directors of the Centers for Medicare & Medicaid Services, and their respective agencies, in U.S. District Court in the Northern District of Texas Lubbock Division on Thursday.
It’s the “latest unlawful action by the Biden Administration,” he said after the U.S. Supreme Court overturned Roe v. Wade and returned the legality of abortion to the states.
Texas has largely outlawed abortion. Those fighting state and federal court battles over the Texas law have lost, and abortion providers have moved their abortion business to New Mexico and other states. Those performing abortions, or aiding in obtaining one, in Texas after a pre-born baby’s heartbeat is detected can be sued civilly by anyone under state law.
After the Supreme Court ruling, Biden issued an executive order directing Becerra to submit a report “identifying steps to ensure that all patients … receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act.”
Also after the ruling, Becerra told NBC News that Americans “can no longer trust” the Supreme Court and the administration’s response would be “aggressive and go all the way.”
On July 11, CMS issued a guidance to state agency directors and Becerra sent a letter to providers describing the guidance. However, the guidance includes “new requirements related to the provision of abortions that do not exist under federal law,” the lawsuit argues.
The requirements stipulate that providers can perform abortions if “abortion is the stabilizing treatment necessary to resolve [an emergency medical condition],” although “this condition has never been a part of EMTALA,” Paxton notes.
The guidance specifies that if a state law prohibits abortion and doesn’t include an exception for the life of mother or “draws the exception more narrowly than EMTALA’s emergency medical condition definition – that state law is preempted.”
But this has never been a part of EMTALA either, Paxton notes. In fact, it’s the opposite of what the statute states. EMTALA “do[es] not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of [EMTALA],” according to the law.
EMTALA was created by Congress in 1986 as a way “to prevent ‘patient dumping,’ which is the practice of refusing to treat patients who are unable to pay,” according to the brief. Every Medicare-participating hospital must provide medical screening and stabilizing treatment for emergency medical conditions regardless of a patient’s ability to pay, according to the law.
The law doesn’t mandate access to abortion, codify a right to an abortion, or include abortion as an “emergency medical condition,” Paxton argues.
The HHS guidance also doesn’t cite federal law authorizing or requiring an abortion.