Last night, federal district judge James Wesley Hendrix preliminarily enjoined the Biden administration from enforcing against the state of Texas and against two groups of pro-life doctors its post-Dobbs guidance on the federal Emergency Medical Treatment and Labor Act (EMTALA).
If you’re still with me, this is complicated stuff that I will do my best to explain succinctly in this post. I’ll begin by summarizing the Texas abortion law that will go into effect tomorrow (point 1), EMTALA (point 2), and HHS’s EMTALA guidance (point 3). I’ll then set forth Judge Hendrix’s ruling (point 4), address a few attacks on it (point 5), and discuss how it relates to the EMTALA case in Idaho on which a ruling is expected later today (point 6).
1. The Texas Human Life Protection Act generally prohibits any person from performing an abortion. It provides an exception when a licensed physician, in the exercise of reasonable medical judgment, judges that a “life-threatening physical condition … places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.” (The Act also makes clear that removal of an ectopic pregnancy is not an abortion.)
2. As the Department of Health and Human Services explains, Congress enacted EMTALA to ensure public access to emergency services regardless of ability to pay. EMTALA “imposes specific obligations on Medicare-participating hospitals that offer emergency servicesto provide … treatment for an emergency medical condition, including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with [emergency medical conditions].”
EMTALA defines the term “emergency medical condition” to mean:
(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—
(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part; or
(B) with respect to a pregnant woman who is having contractions—
(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or
(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.
3. In a guidance letter issued on July 11, HHS Secretary Xavier Becerra broadly advised “health care providers” that EMTALA “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.” Becerra does not mention that EMTALA also requires health care providers (more precisely, Medicare-participating hospitals) to provide stabilizing treatment for a pregnant woman’s “unborn child.” Instead, he asserts:
[If] a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.
4. Texas and two groups of pro-life doctors sued Becerra on the ground that his guidance letter unlawfully requires abortions in situations in which Texas outlaws them. In his ruling, Judge Hendrix agrees. The gist of his rulings is that Becerra’s advice “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 highlights that “Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions.” As Hendrix explains more fully:
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. Congress has not. EMTALA, by its terms, does not require any particular stabilization procedure except one: delivery of the unborn child and the placenta. Outside of requiring delivery of the child when a mother experiences contractions, EMTALA provides no roadmap for doctors when their duty to a pregnant woman and her unborn child may conflict.
Because EMTALA “provides no instructions on what a physician is to do when there is a conflict between the health of the mother and the unborn child,” Texas law “fills this void.” And because “nothing about the way Texas has filled that void—permitting abortions to protect the mother’s life or to avoid a serious risk of substantial impairment of a major bodily function—makes the provision of stabilizing care impossible,” EMTALA does not preempt Texas law. A contrary reading would also contravene the Medicare Act’s prohibition of federal interference with state regulation of the practice of medicine.
Judge Hendrix also rules that Becerra’s letter was procedurally defective. Because it establishes or changes a substantive legal standard, it was subject to notice-and-comment rulemaking requirements.
5. I’ve seen various early criticisms of Hendrix’s ruling on Twitter, and none of them is persuasive. Various folks claim that the ruling exposes women to life-threatening health risks, but Texas law expressly allows abortion in such instances. Others complain that the Texas exception isn’t as broad as they would like, but I don’t see what that has to do with a proper reading of EMTALA. Still others contend that Hendrix is adopting a theory of “fetal personhood.” But it’s EMTALA itself that clearly recognizes the “unborn child” as a proper recipient of medical care.
Many critics also point out that Hendrix was appointed by President Trump. But they overlook that he was first nominated by President Obama (subject of course to the constraints that home-state senators were able to impose). Plus, he was confirmed 89 to 1 by the Senate, so he was not even among those Trump appointees regarded as controversial.
6. Later today, a federal district judge in Idaho is expected to grant the Biden administration an injunction against an Idaho abortion law to the limited and hypothetical extent that the law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition.” If the judge does issue an injunction, he would probably do so by adopting a reading of EMTALA that conflicts with Judge Hendrix’s.
As I’ve explained in this post, such an injunction would be unjustified for the additional reason that EMTALA merely imposes a funding restriction on hospitals that choose to take part in Medicare, so the Biden administration’s only proper legal recourse is to take enforcement action against any Medicare-participating hospital in Idaho if and when such hospital actually fails to comply with EMTALA.
In any event, the Fifth Circuit and the Ninth Circuit might soon be addressing the interplay between state abortion laws and EMTALA.