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Judge stops Biden admin. from enforcing 'emergency' abortion mandate in Texas

Joe Biden
President Joe Biden |

A judge has temporarily blocked federal guidance requiring emergency medical care to include abortion in Texas where abortion is illegal except in medical emergencies, miscarriages or the removal of ectopic pregnancies.

In July, the U.S. Department of Health and Human Services issued guidance claiming that the federal Emergency Medical Treatment and Labor Act requires hospitals to provide abortions for a host of reasons, even if they are in a state that bans the procedure.

However, U.S. District Judge James Wesley Hendrix in Lubbock granted a motion on Tuesday for a preliminary injunction against the guidance, arguing that EMTALA does not apply to abortions.

“That Guidance 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,” wrote Hendrix.

“Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized.”

Hendrix also pointed out that “Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy.”

“In any event, HHS issued it without the required opportunity for public comment. As a result, the Court will preliminarily enjoin the Guidance’s enforcement against the plaintiffs,” he added.

Shortly after HHS issued the abortion guidance in July, the office of Texas Attorney General Ken Paxton filed suit, claiming that the measure violated the state’s "sovereign interest in the power to create and enforce a legal code."

Other plaintiffs in the litigation against HHS over the guidance included the American Association of Pro-life Obstetricians and the Christian Medical & Dental Associations.

For his part, HHS Secretary Xavier Becerra stated in July that he believed the guidance was justified to make sure “women have the right to emergency care — including abortion care.”

“Today, in no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care,” said Becerra at the time.

“Health care must be between a patient and their doctor, not a politician. We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”

Since the United States Supreme Court overturned Roe v. Wade in June, the Biden administration has taken several efforts aimed at advancing access to abortion in states where it is banned.

Earlier this month, the U.S. Department of Justice sued Idaho over its abortion ban, which allows for abortion in cases of rape, incest and life-threatening medical emergency for the mother, claiming that it violated EMTALA.

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