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Texas sues Biden administration over requiring abortions in medical emergencies

The suit says a directive that medical providers must offer "legally-mandated, life- or health-saving abortion services in emergency situations" is unlawful.

Texas Attorney General Ken Paxton sued the Biden administration Thursday arguing that a recent directive for medical providers to offer abortions in emergency situations was unlawful.

The federal suit, which was filed in U.S. District Court for Northern Texas, contends the directive from the Department of Health and Human Services is an "attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic" and should be blocked.

“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,” Paxton said in a statement. “I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”

Texas Attorney General Ken Paxton speaks outside the Supreme Court in Washington on April 26, 2022.
Texas Attorney General Ken Paxton speaks outside the Supreme Court in Washington on April 26, 2022.Stefani Reynolds / AFP - Getty Images file

HHS Secretary Xavier Becerra issued guidance this week saying a 1985 law known as the Emergency Medical Treatment and Active Labor Act, or EMTALA, protects providers offering emergency abortion services, even if a state law outlaws it.

"Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features," the agency document said.

Becerra said in a statement Monday, “Under the law, no matter where you live, women have the right to emergency care — including abortion care.” He said his agency was "reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care."

President Joe Biden’s issued an executive order July 8 to bolster access to abortion in the wake of the Supreme Court decision overturning Roe v. Wade. The Biden administration has been seeking ways to use administrative actions to protect remaining abortion rights, particularly as Democrats don't have the votes to pass broader legislation in Congress.

The Texas lawsuit, however, contends that the 1985 law cited by Becerra "does not mandate, direct, approve, or even suggest the provision of any specific treatment. It says nothing about abortion." Paxton further argued in the suit that Becerra's guidance "purports to simply remind hospitals of their existing obligations under federal law.”

“But it does not: it includes a number of new requirements related to the provision of abortions that do not exist under federal law," he said.

"No federal statute, including EMTALA, supersedes or preempts the States’ power to regulate or prohibit abortion," the suit says.

A spokesperson for the Justice Department said, “We’re reviewing the complaint,” and declined further comment.

In a statement Friday, the Health and Human Services Department said, "Federal law is clear: Patients, no matter where they live, have the right to emergency care — including abortion care, if their emergency doctor determines it necessary."

"We will continue doing everything we can in the fight to protect access to health care, including reproductive health care," the statement said.