HOUSTON — Days after the Biden administration moved to ensure access to abortion in certain emergencies, Texas Attorney General Ken Paxton filed a lawsuit Thursday challenging federal guidelines, saying it would “force abortions” in hospitals in the state.
The lawsuit was an opening salvo in what will likely be a lengthy legal tug of war between the government and states like Texas, which have taken swift steps to ban abortion in nearly all cases in the wake of the Supreme Court’s recent decision to overturn Roe v. Waad. .
The lawsuit, which Biden’s Health Secretary Xavier Becerra names as the main defendant, stems from guidelines issued Monday by the federal Department of Health and Human Services. The agency has instructed hospitals that, even in states where abortion is illegal, federal law requires physicians to perform abortions for pregnant women who show up in emergency rooms if they believe it is “the stabilizing treatment needed” to get an emergency. resolve a medical emergency.
“President Biden is blatantly ignoring the legislative and democratic process — and ignoring the Supreme Court’s ruling before the ink runs dry — by giving his appointed bureaucrats the mandate that hospitals and emergency medicine physicians should perform abortions,” Mr Paxton wrote in a statement. complaint filed Thursday. in the United States District Court in Lubbock, Texas.
White House press secretary Karine Jean-Pierre responded in a statement, citing “yet another example of an extreme and radical Republican elected official”. Without mentioning Paxton’s name, the statement said it was “inconceivable that this government official would file a lawsuit to prevent women from receiving life-saving care in the emergency room, a right protected by U.S. law.”
Read more about the end of Roe v. Wade
The lawsuit comes amid an active discussion among doctors and hospital attorneys across Texas — and other states that have banned all or most abortions — about when the procedure might be allowed in an emergency. Texas law allows exceptions where an abortion would save the pregnant patient’s life or prevent “significant impairment of important bodily functions” — the kinds of situations federal guidance is directed at, though it leaves room for interpretation.
Mr Paxton has often turned to the courts to express his opposition to Mr Biden’s policies; The Texas Tribune reported in April that he had filed 11 immigration-related lawsuits against the government. He has also filed or joined a series of lawsuits related to Covid-19 policy, including the government’s efforts to mandate mask-wearing and vaccination.
For Mr. Biden, the legal challenge highlights the pressure he faces from all sides in the wake of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, the case that quashed Roe. Abortion rights activists and some liberal lawmakers have criticized the president for not acting swiftly and forcefully on the ruling.
Under pressure, Mr. Biden last week issued an executive order directing the Department of Health and Human Services and other federal agencies to take all possible steps to do so. But Mr. Becerra has admitted there is no “magic bullet” to preserve or restore access to abortion.
Monday’s guidelines for hospitals were accompanied by a letter from Mr. Becerra to health care providers, outlining their responsibilities under the Emergency Medical Treatment and Active Labor Act, known as EMTALA, a 1986 law requiring everyone who arrives at an emergency department to be stabilized and treated, regardless of their insurance status or ability to Pay.
Opponents of abortion, including Roger Severino, who headed the Health Department’s Office of Civil Rights under former President Donald Trump, have said the directive itself violates the law, which states that both a pregnant woman if her unborn child should be stabilized. Mr Paxton made that argument in his file.
“No federal statute grants the right to abortion,” he wrote. “EMTALA is no different. It does not guarantee access to abortion. Rather, EMTALA considers that a medical emergency is one that threatens the life of the unborn child.”
But Lawrence O. Gostin, a public health law expert who has advised the administration, said the new directive stands on “solid legal basis” by claiming that when federal and state laws conflict, federal law controls those of the state. has priority.
“EMTALA is not specifically designed for access to abortion or miscarriage management, but it definitely includes both,” said Mr. Gostin. He said the law would allow an abortion “as long as it is based on the need to prevent a pregnant woman from suffering serious health or life-threatening consequences as a result of her pregnancy.”
The hospital guidelines were the first of two abortion-related actions the Department of Health and Human Services took this week. On Wednesday, it warned the country’s 60,000 retail pharmacies that they risk violating federal civil rights laws if they refuse to fill prescriptions for pills that can induce abortion.
That guideline refers to three drugs — mifepristone, misoprostol and methotrexate — which are commonly prescribed for other conditions but can also cause abortion. But the guidance was carefully written, without telling pharmacies to dispense the drugs for abortion.
Experts said the administration was responding to reports that women of childbearing age have been banned from the drugs since the Supreme Court ruling.
“They are doing what they can to clarify what federal protection is; I think there’s a lot of pressure on them to do that,” said Alina Salganicoff, the director of women’s health policy at the Kaiser Family Foundation, adding, “Lawyers across America are very busy right now asking employers, advise hospitals and clinicians on their responsibilities and potential liability when it comes to abortion.”