Texas Draws Abortion Bans Tighter

A ruling out of the conservative Fifth Circuit pits the state’s draconian abortion bans against federal emergency medical care guidelines

Image courtesy of NBC News

Texas has it in for women lately, especially on abortion. And a ruling on Tuesday makes that even clearer and more horrifying.

Most here know about the dystopian nightmare endured by Kate Cox, a 31-year old mother from Dallas whose fetus had developed a chromosomal anomaly called Trisomy 18. The condition meant the pregnancy would almost certainly be non-viable, and carrying to term could even render Cox infertile.

Cox obtained a court order allowing her to obtain an abortion. But the state of Texas, led by MAGA extremist and criminally indicted state Attorney General Ken Paxton, intervened. The Texas Supreme Court quickly overruled that court and handed a victory to Paxton and Texas, holding that under the state’s near total abortion ban, Cox was not permitted to terminate her pregnancy because she was not at risk of losing her life or a major bodily function.

Cox had to leave the state to obtain a legal abortion. But not everyone has that option.

After the Dobbs decision came out in June of 2022, the federal government sought to support women like Kate Cox in states with harsh abortion bans. It reiterated guidance informing doctors that under federal law, when they discover an emergency medical condition, they are still legally obligated to stabilize patients, including to provide abortion care. 

But on Tuesday, at the urging of Paxton, the ultra-conservative Fifth Circuit disagreed, holding that Texas’s anti-abortion bill actually trumps federal emergency care. This is a huge expansion of state power to ban abortions.

How did the Fifth Circuit arrive at this astonishing and terrible decision? Will the Supreme Court likely review the ruling? And how does this decision fit into the larger picture of where abortion rights are headed, especially in next year’s critical elections?

The federal government versus the state of Texas on abortion

When the Dobbs decision came down, ending a fifty-year federal constitutional right to abortion, Texas responded with one of the harshest laws in the nation. Abortion in the state is now illegal in all cases, except where “in the exercise of a reasonable medical judgment,” a doctor determines that the patient is experiencing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

The Biden administration did what it could to be on the side of women in states like Texas. Under existing federal law, known as the Emergency Medical Treatment and Active Labor Act (EMTALA) passed in 1986, any hospital that receives Medicare funds must abide by certain legal obligations around emergency care, including abortions. As legal writer Chris Geidner summarized at the time, 

[Hospitals] must provide appropriate “medical screening examination” and, if an “emergency medical condition” is found, then also provide “stabilizing treatment” or “an appropriate transfer” to a hospital that can do so. If the necessary stabilizing treatment is an abortion, “the physician must provide that treatment,” the guidance states. Finally, the guidance makes clear repeatedly that EMTALA preempts state laws that conflict with EMTALA obligations, including state abortion bans.

In other words, federal law says hospitals must provide necessary abortions as stabilizing care in the event of an emergency medical condition, no matter what state law says.

This set up a difficult legal conundrum for hospitals and doctors in states like Texas. If they provide the medically necessary and stabilizing abortion, they could be in violation of state law. But if they refuse to provide it, they could be in violation of federal law.

Texas Attorney General Paxton sued in federal court to prevent the guidance from being enforced in Texas. He prevailed in federal district court, and the case went up on appeal to the Fifth Circuit.

The Fifth Circuit and the “Dual Requirement” of care to the “unborn child”

There are a few legal sleights of hand at work in the Fifth Circuit’s opinion, but I want to draw attention to one of the most pernicious of its readings of the federal guidance.

EMTALA is supposed to focus on the medical condition of the individual seeking care, meaning in this case the mother. If she has come into hospital and suffers from an emergency medical condition, it is her well-being that should drive considerations of what care to provide under the law, including abortion care where medically necessary.

But the Fifth Circuit twists the language, using references to the “unborn child” out of context in the law to manufacture a “dual requirement” of care—one that considers both the mother and the unborn child. But that’s not in the law. It’s being created out of whole cloth by conservative courts.

Unsurprisingly, then, the Fifth Circuit concludes by saying that it’s possible to comply with both EMTALA and state law, and golly there is no conflict at all! After all, abortion care could not possibly ever be viewed as required by federal law given the need “dual requirement” of care, which of course the Fifth Circuit made up.

Elevating the fetus to the same importance as the mother is of course a primary goal of extremists on the abortion question, and now they have a solid foothold with this new opinion.

A coming clash of circuits and a likely SCOTUS weigh in

The preemption of state law by federal emergency care law is also the subject of a case pending in the far more liberal Ninth Circuit, which this month will hear an appeal from a conservative federal district court in Idaho. That court, to no one’s real surprise, had placed Idaho state law and its total abortion ban above federal law under EMTALA.

If, as expected, the Ninth Circuit reaches a decision contrary to the Fifth Circuit, that will set up a clash and leave the question ripe for adjudication by the U.S. Supreme Court. 

At this point, it’s unclear how the Supreme Court will rule. After dropping the Dobbs bomb in June of 2022, even some of the conservative justices have shown misgivings about how far to take the abortion question. This includes their apparent recent skepticism over the national ban on the abortion medication, mifepristone. That case also originated in a radical Texas district court and made its way up to the activist Fifth Circuit. 

The conservative justices likely understand that a ruling in favor of strict state abortion bans, especially in the wake of stories like that of Kate Cox, would further inflame tensions on the issue. It could wind up driving massive turnout next November by women already furious over Dobbs.

One thing is clear, however. If the Court thought it had ended the controversy over abortion by washing its hands of the question and sending it “back to the states,” it was much mistaken. States like Texas and its frankly cruel Attorney General are intent on expanding the power of their state’s abortion bans as far as they possibly can, including challenging what federal protections and options still remain. That means abortion is going nowhere fast as a national issue, and it will continue to be determinative throughout 2024. In the meantime, women throughout the Fifth Circuit who are coming into the ER in need of medically necessary abortions will suffer the tragic consequences.