Opinion Texas’s new lawsuit against Biden shows our dark post-Roe future


HR King
May 29, 2001
By Paul Waldman
Greg Sargent

July 14, 2022 at 5:51 p.m. EDT
A wave of new abortion bans is taking effect in Republican-run states, but many of them contain an exception: An abortion can be performed if it’s necessary to save the life of the mother. In practice, however, that’s a far fuzzier line than it might appear.
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The Biden administration wants to make sure that the exception is meaningful, and Republican states look like they’ll try to make sure it isn’t. Which means one key upcoming area of intense fighting over abortion will concern what happens in hospital emergency rooms and operating rooms.
Texas Attorney General Ken Paxton (R), a strong contender for the wingnuttiest AG in all the land, has filed a lawsuit against the Biden administration’s latest effort to establish that this exception is indeed meaningful. The lawsuit claims that the effort attempts “to use federal law to transform every emergency room in the country into a walk-in abortion clinic.”
Paxton’s lawsuit is weak, to say the least. But it provides another indication where this is all headed.
The background: After the Supreme Court overturned Roe v. Wade, the Department of Health and Human Services issued guidance to state officials and hospitals reminding them of requirements mandated by the Emergency Medical Treatment and Labor Act (EMTALA).
That’s a federal law requiring medical facilities to either give “stabilizing treatment” to someone who arrives with a medical emergency, or transfer them to another hospital. Under the law, if you show up to a hospital with a gunshot wound, the hospital must treat you even if, say, you don’t have insurance.
In this case, the administration was letting everyone know that if a patient “is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment." This applies no matter what a state’s law says about abortion.
Paxton’s lawsuit claims that because EMTALA does not specifically mandate particular medical procedures that must be performed, the federal government therefore can’t require that an abortion be performed. But the law does require hospitals to do what is necessary to preserve patients’ lives — and in cases where that means an abortion, then doctors ought to be able to say they’d followed federal law.
Jenny Ma, a senior staff attorney at the Center for Reproductive Rights, notes that this is exactly what Texas is trying to prevent. “This lawsuit is just another example of how radical the anti-abortion movement really is,” Ma told us.
For good measure, Paxton throws in that “EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child." How he decided that the law “contemplates” this, he does not say.
Nevertheless, it shows how the radical idea of “personhood” for a fetus — which says that from the moment of fertilization its rights are equal to that of a human being, rights that can potentially overcome those of the woman carrying it — will be finding its way into state laws.
All this points to dark turns that our post-Roe future will likely take. At issue will be whether health-care providers in states banning abortion will have flexibility to make hard decisions in life-threatening situations for women, or whether they’ll feel constrained by fear of prosecution.
As legal experts note, “trigger bans” on abortion that took hold in some states after Roe’s demise are vaguely worded. This makes it hard to know whether an exception to a ban — to protect a patient from death or serious injury — might actually apply in any given situation.
That threatens to render providers more reluctant to make crucial decisions in such situations. And the perils of this vague wording may also be germane in the case of future state laws that ban or severely restrict abortion, yet include such exceptions.
One danger is that providers might fear prosecution so much that they’d be reluctant to act in urgent situations. Another is that providers might not want to practice in such places, which could have other terrible consequences.
The Texas lawsuit is another sign of where things are headed. The federal government issued guidance designed to make it clear that under federal law, providers do have flexibility to act to protect women in urgent situations.
And Texas is effectively responding: No, you don’t.
“In Texas now, doctors have to worry that they will face homicide charges or be labeled as ‘murderers’ for acting to save a pregnant person’s health or life in severe emergencies,” Elizabeth Sepper, a law professor at the University of Texas at Austin, told us. “Across the country, doctors who have largely been shielded from abortion politics are going to find that the criminal law is hanging over their shoulder.”
This area — how to define these exceptions, and whether to give providers flexibility to act to save patients’ lives — will likely become a major area of moral contestation. It may also constitute a legal vulnerability for these laws, as drafters find it’s hard to define exceptions in ways that enable providers to act without fearing prosecution.
Of course, to some drafters, this sort of vagueness may be a feature of these laws — as it could ensure that providers do fear acting in exactly that way — and not a bug.


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