Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
The 5th U.S. Circuit Court of Appeals heard arguments Tuesday about whether the federal government can require Texas hospitals to perform life-saving abortions, despite the state’s near-total ban on the procedure.
After the overturn of Roe v. Wade, President Joe Biden issued guidance to federally funded hospitals, reminding them of their obligation to provide stabilizing health care to anyone who shows up at the emergency room, even if that care requires performing an abortion.
The Biden administration said this was not a new policy, but merely reiterating existing regulations under the federal Emergency Medical Treatment and Labor Act (EMTALA).
Texas challenged the guidance, saying it was an improperly implemented overreach that creates a “nationwide mandate that every hospital and emergency-room physician perform abortions.”
The case was filed before U.S. District Judge James Wesley Hendrix, the only full-time federal judge in Lubbock, who has heard many of the state’s cases since he was appointed to the bench by President Donald Trump in 2019.
Hendrix sided with the state on this issue, saying the Biden administration had exceeded its authority and not followed proper procedure in issuing this guidance. He enjoined the guidance within Texas and ruled that Texas’ abortion laws are not preempted by EMTALA.
The Department of Justice appealed that ruling, and a three-judge panel — two judges appointed by Trump and one by President George W. Bush — heard arguments Tuesday at the 5th U.S. Circuit Court of Appeals in New Orleans. The court did not indicate when it might rule.
Enacted in 1986, EMTALA requires emergency rooms to screen and stabilize anyone who arrives at the emergency room, including patients in active labor. The law was originally passed to counteract “patient dumping,” or rejecting patients without insurance or ability to pay.
The EMTALA statute specifies that it preempts state laws that contradict this obligation. Texas’ abortion laws allow doctors to perform abortions to save the life of the pregnant patient, but do not require it.
“Texas law might not prohibit the care,” said McKaye Neumeister, a lawyer for the U.S. Department of Justice. But, she told the judges, the U.S. Department of Health and Human Services’ role is “to ensure that the care is offered when it is required under the statute.”
“Individuals [are] presenting to emergency rooms, suffering from these emergency medical conditions,” Neumeister said. “Right now, HHS can’t ensure that the hospitals are following their obligations in offering the care that’s required.”
Assistant Texas Solicitor General Natalie Thompson argued that Texas’ law is “perfectly consistent” with EMTALA because it allows for abortions to save the life of the mother. It is the guidance from the Biden administration, she argued, that went further than the statute requires.
Judge Leslie Southwick seemed to agree, saying there were several “extraordinary things, it seems to me, about this guidance.”
Southwick said it seemed HHS was using this guidance to expand abortion access in Texas to include not just life-saving care, but “broader categories of things, mental health or whatever else HHS would say an abortion is required for.”
“This statute really has to do with the ugly concept of patient dumping and it’s been converted by HHS through this guidance into an abortion statute,” he said.
Two anti-abortion medical associations, represented by right-wing law firm Alliance Defending Freedom, joined Texas in filing the lawsuit.
At the hearing Tuesday, the state shared its argument time with ADF senior vice president Ryan Bangert who, less than two months ago, testified against his former boss, Texas Attorney General Ken Paxton at his impeachment trial.
But on this issue, Bangert and the Office of the Attorney General were aligned.
“This is part of a much, much broader pattern where the federal government … is making moves through the administrative state to increase access to abortion,” Bangert said. “That’s what this is about.”
