Texas Attorney General Ken Paxton filed a lawsuit Thursday against the Biden administration arguing that a recent directive for medical providers to offer abortions in emergency situations was unlawful.
The federal suit, which was filed in the Northern District of Texas, contends the directive from the Department of Health and Human Services is an “attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic” and should be blocked.
“This administration has a hard time following the law, and now they are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions,” Paxton said in a statement. “I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”
HHS Secretary Xavier Becerra this week issued guidance saying a 1985 law known as the Emergency Medical Treatment and Active Labor Act (EMTALA) protects providers offering emergency abortion services, even if a state law outlaws it.
“Emergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features,” the agency document said.
“Under the law, no matter where you live, women have the right to emergency care — including abortion care,” Becerra said in a statement on Monday. He said his agency was “reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care.”
The agency action came on the heels of President Joe Biden’s July 8 executive order aimed at bolstering access to abortion in the wake of the Supreme Court’s decision overturning Roe v. Wade. The Biden administration has been seeking ways to use administrative actions to protect remaining abortion rights, particularly as Democrats don’t have the votes needed to pass broader legislation in Congress.
The Texas lawsuit, however, contends that the 1985 law cited by Becerra “does not mandate, direct, approve, or even suggest the provision of any specific treatment. It says nothing about abortion.” Paxton further argued in the suit that Becerra’s guidance “purports to simply remind hospitals of their existing obligations under federal law. But it does not: it includes a number of new requirements related to the provision of abortions that do not exist under federal law.”
“No federal statute, including EMTALA, supersedes or preempts the States’ power to regulate or prohibit abortion,” the suit said.
A representative for HHS did not immediately respond to a request for comment. A spokesperson for the Justice Department said, “We’re reviewing the complaint,” but declined further comment.