Ugh.
Texas hospitals will not be required to provide emergency abortions after a federal judge ruled the Biden administration was unauthorized to enforce such a rule.
U.S. District Judge James Wesley Hendrix in Lubbock ruled that the guidance by the U.S. Department of Health and Human Services went beyond the text of a related federal law, Reuters reported. The judge’s ruling agreed with Republican Texas Attorney General Ken Paxton.
Hendrix, who was appointed by former President Donald Trump, only barred federal regulators from enforcing the guidance and its interpretation of the Emergency Medical Treatment and Active Labor Act in Texas, and against two anti-abortion groups of doctors. The judge declined to enjoin the guidance nationwide.
[…]
The ruling is the latest in an ongoing battle for abortion rights in Texas and other conservative-led states. When the U.S. Supreme Court overturned abortion rights in the country, Texas had a clear path for its “trigger law” that bans almost all abortions, which goes into effect Thursday.
The Biden administration’s guidance was an attempted response to concerns about the health of pregnant patients being turned away or delayed care by hospitals worried about abortion bans. The Texas Medical Association wrote a letter asking state regulators to “prevent any wrongful intrusion into the practice of medicine.”
See here for the background. At least this time it’s just limited to the state and not nationwide, though of course it’s our effed-up state that needed this to be decided differently. As TPM notes, there’s a similar case in Idaho that may have a ruling by the time you read this, so we’re going to be fighting this out in the appeals courts and then very likely SCOTUS. Joy.
I often say that I Am Not A Lawyer in posts about legal things. I say that in part to make it clear that my analysis is that of a layperson, and one should be wary of accepting my acumen of the finer points of legal theory. But that also frees me to an extent of the concern about the technicalities and lets me just focus on the things that should matter, whether they actually will in a real courtroom or not. As a prime example of this, let’s look at a bit of the judge’s ruling. I’m quoting from that TPM story now:
“That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict,” Hendrix writes.
Siding with the two groups of anti-abortion physicians as well as the state of Texas, Hendrix writes that the HHS guidance requiring physicians to act when the woman’s health is at risk is too generous.
“The Guidance states that EMTALA may require an abortion when the health of the pregnant woman is in serious jeopardy,” he says. “Texas law, on the other hand, limits abortions to when the medical condition is life-threatening, and HLPA goes further to expressly limit the condition to a physical condition,” he adds, referring to Texas’ trigger law that outlaws abortions in most cases.
He argues that the guidance also does away with consideration for the embryo or fetus. The government contends that, when the wellbeing of the woman and embryo or fetus are in conflict, it should be the pregnant patient who decides whether or not to go forth with an abortion. Hendrix says that the decision should be taken out of the woman’s hands and put into the doctor’s — who has to then comply with state law.
He also dips into agency power arguments to hack back the guidance, claiming that Congress has not resolved the specific question at play.
“Specifically, the question at issue here is whether Congress has directly addressed whether physicians must perform abortions when they believe that it would resolve a pregnant woman’s emergency medical condition, irrespective of the unborn child’s health and state law,” he writes. “Congress has not.”
In other words, unless you the doctor who may get prosecuted for murder are sure the pregnant person is going to die, you have to let them suffer. I don’t care about the legal technicalities, I’m here to say that if you’re capable of committing these words to a document, you’re a goddamned sociopath and you have no business having power of any kind. That of course also applies to Ken Paxton and Greg Abbott and every single member of the Legislature who voted for these barbaric laws. It’s what this election is about. And I should note that Slate’s Mark Joseph Stern, who is an actual lawyer, sees this the same way I do. So there. Daily Kos and CNN have more.
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