If the statement sounds exaggerated, take a look at the details of Tuesday's Texas v. Becerra ruling. It includes a conflict between the strict abortion ban in Texas and a federal law. The anti-abortion movement's basic animosity for any health exceptions is reflected in Texas legislation, which only allows emergency abortions in cases when a patient is "at risk of death" or has "substantial impairment of a major bodily function." A doctor faces a 99-year prison sentence if they end a pregnancy before this time. Last month, the Texas Supreme Court upheld the limited reach of this exception by prohibiting Kate Cox from getting an abortion. Because of a defect that made the fetus unfit for life, Cox experienced "severe cramps, leaking fluid, and elevated vital signs." Nonetheless, the court decided unanimously that Cox had a legal duty to carry on with the failing pregnancy until her symptoms were noticeably worse.
The Emergency Medical Treatment and Active Labor Act, or EMTALA, is a federal statute that is in contradiction with this and similar harsh bans. According to this regulation, any patient with a "emergency medical condition" must receive "necessary stabilizing treatment" from federally funded facilities. Any condition that "could reasonably be expected" to gravely imperil a patient's health, physiological functions, or organs is what is meant to be included under this definition. The Department of Health and Human Services under President Joe Biden released guidelines in July 2022 stating that EMTALA is applicable in cases where a pregnant patient needs an abortion for "stabilizing" care. It made it clear that EMTALA supersedes any stronger abortion restrictions, allowing doctors in red states to end a pregnancy well in advance of a patient's death.
Texas swiftly criticized the Biden administration's advice, launching a lawsuit in a division that guaranteed the case would be heard by James Wesley Hendrix, a far-right Trump nominee who is a favorite judge among conservatives. The state contended that EMTALA's "stabilizing" requirement does not apply to abortion and that it is within its rights to push patients into more severe medical distress before granting them permission to end a pregnancy. Hendrix complied as expected, preventing the federal government from "enforcing the guidance" in Texas or from taking legal action against a group of doctors who supported abortion who joined the complaint. After an appeal by Biden's Department of Justice, the 5th Circuit now supports Hendrix.
Trump appointment Kurt Engelhardt wrote the decision, with assistance from Trump appointee Cory Wilson and George W. Bush judge Leslie Southwick. Engelhardt stated that the federal government, not the states, "historically subject to police power of the states," and that EMTALA "does not govern the practice of medicine." Rather, the law simply prevents hospitals from "dumping" underprivileged individuals who require urgent care, the author stated. He came to the conclusion that Congress would have made it clearer if it had meant for it to cover abortion. (Of course, "stabilizing treatment" refers to a wide variety of medical procedures that Congress did not specifically define, and Engelhardt did not provide an explanation for his disapproval of abortion.)The judge also seized upon the term "unborn child" as used in EMTALA, asserting that the statute establishes a "dual requirement" that hospitals have "equal stabilizing obligations" to both patients and their fetuses, and that the latter cannot be aborted in order to preserve the former. This statement is blatantly untrue; it is a deliberate misinterpretation of a clause intended to grant patients the autonomy to demand urgent fetal intervention if they so desire.
Take a moment to consider the ramifications of the 5th Circuit's ruling. The court recognized something that the anti-abortion lobby has made a great effort to hide: Texas' and other states' abortion restrictions endanger the health of expectant patients by preventing them from receiving the medical care that professionals have provided in these terrible situations. The state-mandated fixation on preserving the fetus's heartbeat for as long as possible must be substituted by doctors, even in cases where the patient is at risk of organ damage or other serious bodily impairment, the pregnancy is certain to end in miscarriage, or the fetus is not compatible with life. When state officials, supported by the Texas Supreme Court, denied Kate Cox access to an abortion that she desperately needed, she had to learn this lesson the hard way.Like Amanda Zurawski, who, in spite of premature dilation, prolapsed membranes, and quickly progressing sepsis, was denied access to emergency abortion care in Texas and is currently facing infertility as a result of treatment delays, almost lost her life. Red-state prohibitions have also prevented countless other patients from accessing emergency abortions.
These states constantly make an effort to place the responsibility for these horrifying, excruciating incidents on patients, physicians, and even the media. However, the fault lies with the statutes themselves, as the 5th Circuit has confirmed.The Biden administration attempted to provide a compassionate exception for "stabilizing" care when there was a "reasonable expectation" that the patient's condition would deteriorate significantly. Republican senators fiercely disagreed with this compromise, reinforcing an exception that is so limited and unclear that, practically speaking, a physician cannot take action until their patient is on the verge of death.
In the end, this dispute will need to be resolved by the US Supreme Court. The Biden administration's interpretation of EMTALA was upheld by a federal judge in Idaho in 2022, and it appears that the U.S. Court of Appeals for the 9th Circuit will soon join him. Idaho has previously petitioned the Supreme Court for an emergency order that would allow the state to penalize physicians who perform "stabilizing" abortions before a patient is in a sufficiently advanced stage of illness. Hospitals in Missouri and Kansas that violated EMTALA by delaying terminating a patient's nonviable pregnancy until she started hemorrhaging—or worse—have been fined by the government. The lower courts are now sharply divided over the executive branch's jurisdiction to govern in this area, a dispute that can only be settled by the Supreme Court.
With these cases, the Supreme Court can lessen the harm caused by its heedless destruction of reproductive rights. The conservative justices might draw a line in the sand and ensure access to abortions across the country in cases where a patient's health is in danger by using EMTALA. However, doing so would entail acknowledging that the court erred the first time around and that overturning Roe did not remove the judiciary from the abortion issue but rather placed life-or-death choices regarding pregnancy in the hands of judges who are ignorant of medical practice. It is unlikely that this Supreme Court will take responsibility for its errors.Red-state doctors do not have the luxury of closing their eyes to the agony they have unleashed, whereas the justices may.
