Texas Attorney General Ken Paxton has sued the U.S. Department of Health and Human Services (HHS) over a memorandum that it had put out just days earlier. The memo makes clear that, despite the U.S. Supreme Court’s decision to overturn Roe v. Wade, health care institutions still need to provide abortion care to patients when deemed necessary in medical emergencies.
This statement from the HHS should not be legally—let alone morally—controversial. Under a decades-old federal law called the Emergency Medical Treatment and Labor Act (EMTALA), hospitals are required to provide stabilizing treatment if a person presents with a medical emergency.
And despite some politicians’ attempts to claim otherwise, abortion can often be necessary to stabilize pregnant patients who are experiencing medical emergencies, including pregnancy loss.
Take a woman experiencing a miscarriage: In some circumstances, without medical treatment that legally meets the definition of an abortion, that woman may quickly develop serious complications, some of which could lead to death, including sepsis—while mourning the loss of a wanted pregnancy. To avoid running afoul of the law, physicians may not intervene, despite the fact that the pregnancy will undoubtably not result in a birth of a child.
July 11 HHS memo:
“A physician’s professional and legal duty to provide stabilizing medical treatment to a patient who presents under EMTALA to the emergency department and is found to have an emergency medical condition preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment.”
July 14 Texas complaint:
“This violates Texas’s ‘sovereign interest in the power to create and enforce a legal code.’ … The sovereign right to enforce its criminal laws is the epitome of Texas’s police power.”
Confusion around life exceptions in Texas abortion bans
Texas’ various abortion bans—those passed both before and after the Supreme Court decided Roe v. Wade—all ostensibly contain an exception to save the life of a patient. But the bans word those exceptions very narrowly and ambiguously, leaving doctors and other medical professionals questioning when and how they can provide care.
This confusion is not academic or theoretical. It has already resulted in multiple reports of women in Texas being denied necessary medications to treat ectopic pregnancies because such treatment could legally be interpretated as abortion. Ectopic pregnancies can quickly cause major hemorrhaging and death and are a leading cause of maternal mortality in the first trimester of pregnancy. The Texas Medical Association recently wrote to the Texas Medical Board in concern as such reports continue to mount, explaining, “Delayed or prevented care in this scenario creates a substantial risk for the patient’s future reproductive ability and poses serious risk to the patient’s immediate physical wellbeing.”
The Biden administration’s guidance sought to clarify that such a state of affairs is unacceptable and that physicians should not fear prosecution—now that many states, including Texas, consider abortion a criminal offense—when providing lifesaving treatment to their patients.
Texas has made it clear through its filing, however, that it does not want such clarification. On the contrary, the lawsuit states that the state will view medical professionals’ decisions to follow federal standards for providing lifesaving care as grounds for criminal investigation and punishment.
The Texas lawsuit amounts to an egregious attempt to deny medical treatment to those in danger of death and foster fear within the medical community. Unfortunately, it should not be viewed as an isolated threat. Three other states have abortion bans in statute that go even further than Texas and do not even contain life exceptions. But even in the many more states with bans that do contain such exceptions, the same confusion plaguing Texas doctors and hospitals will likely limit access to lifesaving health care.
The courts should dismiss this suit swiftly and without delay; a failure to do so will only bolster states’ attempts to distort medicine in order to promote their political agenda to define women solely as mothers and deny the basic humanity of those who need care.