Fifth Circuit Blocks Enforcement in Texas of EMTALA Guidance on Abortion Care
- January 12, 2024
The Department of Health and Human Services (HHS) cannot enforce in Texas guidance that physicians must provide abortion care under the Emergency Medical Treatment and Labor Act (EMTALA) as a stabilizing treatment to pregnant women experiencing an emergency medical condition regardless of state restrictions on the procedure, the Fifth Circuit held January 2.
Affirming the permanent injunction granted to the state, the appeals court held the agency exceeded its statutory authority under EMTALA in issuing the guidance.
HHS issued the guidance shortly after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2243 (2022). The agency said the guidance was intended to remind providers that EMTALA requires them to provide life- or health-saving abortion services in emergency situations. The guidance also indicated that “[w]hen 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.”
Th state of Texas and several organizational plaintiffs challenged the guidance, and the U.S. District for the Northern District of Texas enjoined its enforcement, finding no direct conflict with Texas’ Human Life Protection Act, which prohibits abortion unless the life of the mother is at risk.
The Fifth Circuit panel agreed with the lower court that the guidance goes beyond the scope of the EMTALA statute and must be set aside.
EMTALA was enacted to prevent patient dumping and “does not govern the practice of medicine,” the appeals court said. “While EMTALA directs physicians to stabilize patients once an emergency medical condition has been diagnosed, . . . the practice of medicine is to be governed by the states,” the Fifth Circuit added.
The appeals court also found Texas law did not directly conflict with EMTALA, noting the federal statute imposes dual obligations to stabilize both the pregnant woman and the unborn child. “EMTALA leaves the balancing of stabilization to doctors, who must comply with state law,” the appeals court said.
The Fifth Circuit also agreed with the lower court that the guidance violated the Administrative Procedure Act because it did not comply with notice-and-comment rulemaking.
The case is one of two challenges involving EMTALA brought in the wake of the Supreme Court’s decision overturning Roe v. Wade. While the U.S. District Court for the District of Idaho found EMTALA preempted Idaho’s abortion restrictions, the U.S. District Court in the Northern District of Texas came to the opposite conclusion, finding no direct conflict between the federal statute and Texas’ abortion law. State of Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex. Aug. 23, 2022). The Supreme Court recently granted review of the Idaho case and stayed the injunction of that state's statute pending the Court's decision. See related item in this issue.
Texas v. Becerra, No. 23-10246 (5th Cir. Jan. 2, 2024).