On July 14, 2022, the Texas Attorney General filed a lawsuit against the U.S. Department of Health and Human Services (“HHS”) and certain senior HHS officials challenging HHS advice and the accompanying letter from the Secretary Becerra (“Guidance”) issued three days after President Biden’s July 8, 2022 Executive Order on Protecting Access to Reproductive Health Services (“Executive Order”). The complaint asks the United States District Court for the Northern District of Texas to declare unlawful and set aside the guidelines on the ground that the Emergency Medical Treatment and Labor Act (“EMTALA”) does not provide a basis for the federal government to compel health care providers to perform abortions.
In its complaint, Texas alleges that the EMTALA is part of the Social Security Act, which prohibits federal officials from supervising or controlling the practice of medicine, the manner in which medical services are provided, or the administration or the operation of any entity or individual providing medical services. Texas further asserts that the EMTALA confers no right to any particular medical treatment, including abortion. Instead, Texas says “EMTALA considers an emergency medical condition to be a condition that threatens the life of the unborn child,” and that clearly, “abortion is not life-saving. or the health of an unborn child”.
The complaint suggests that Texas is harmed because the Guide is trying to illegally preempt its state laws. Specifically, Texas is seeking to enforce its civil statute which, without the guidelines, would immediately take effect 30 days after the U.S. Supreme Court’s decision in Dobbs, Mississippi Department of Health State Health Officer, et al. vs. Jackson’s Women’s Health Organization, et al. The state’s Civil Statute Human Life Protection Act would ban abortions in the state unless a woman “suffers from a life-threatening physical condition” resulting from a pregnancy that places her “in danger of death or presents a serious risk of substantial impairment”. of a major bodily function unless abortion is performed. “”Texas is also seeking to enforce many of its previous criminal laws Roe vs. Wadethat would criminalize abortion in the state.
According to Texas, its abortion laws are not preempted because their requirements do not directly conflict with federal law, since the EMTALA neither requires access to abortion nor codifies a right to abortion. It will be interesting to see if the courts find any irony in the Texas Attorney General’s position that Social Security law, particularly the EMTALA, has no power to dictate or control the practice of medicine (i.e. to refuse certain medical treatments), and how the court rules regarding EMTALA’s preemption over contrary state law.
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