The Fifth Circuit just made it even more dangerous to be pregnant in a red state

A person in a sun hat walks in a crowd waving a flag that reads “Bans off our bodies.”
Abortion-rights activists march to the US Supreme Court on June 24, 2023, in Washington, DC. | Anna Rose Layden/Getty Images

The Trumpiest court in America just tried to neutralize a federal law requiring most hospitals to provide medically necessary abortions.

On Tuesday, a notoriously right-wing federal appeals court attempted to rewrite a federal law that, among other things, requires most US hospitals to provide abortions to patients who are experiencing a medical emergency if a doctor determines that an abortion will stabilize the patient.

The case is Texas v. Becerra, and all three of the United States Court of Appeals for the Fifth Circuit’s judges who joined this opinion were appointed by Republicans. Two, including Kurt Engelhardt, the opinion’s author, were appointed by former President Donald Trump.

The case involves the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute requiring hospitals that accept Medicare funds to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment.)

EMTALA contains no carve-out for abortion. It simply states that, whenever any patient arrives at a Medicare-funded hospital with a medical emergency, the hospital must offer that patient whatever treatment is necessary to “stabilize the medical condition” that caused the emergency. So, if a patient’s emergency condition can only be stabilized by an abortion, federal law requires nearly all hospitals to provide that treatment. (Hospitals can opt out of EMTALA by not taking Medicare funds but, because Medicare funds health care for elderly Americans, very few hospitals do opt out.)

This federal law, moreover, also states that it overrides (or “preempts,” to use the appropriate legal term) state and local laws “to the extent that the [state law] directly conflicts with a requirement of this section.” So, in states with sweeping abortion bans that prohibit some or all medically necessary abortions, the state law must give way to EMTALA’s requirement that all patients must be offered whatever treatment is necessary to stabilize their condition.

It is important to emphasize just how little EMTALA has to say about abortion. EMTALA does not protect healthy women who wish to terminate their pregnancies. Nor does it preempt any state regulations of abortion, except when a patient is experiencing a medical emergency and their doctors determine that an abortion is the appropriate treatment.

But when an emergency room patient presents with a life-threatening illness or condition — or, in the words of the EMTALA statute, that patient has a condition that places their health “in serious jeopardy,” that threatens “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part” — then Medicare-funded hospitals must provide whatever treatment is necessary.

The Texas case, in other words, asks whether a state government can force a woman to die, or suffer lasting injury to her uterus or other reproductive organs, because the state’s lawmakers are so opposed to abortion that they will not permit it, even when such an abortion is required by federal law.

And yet, despite the fact that the EMTALA statute is unambiguous, and despite the fact that this case only involves patients whose life or health is threatened by a pregnancy, three Fifth Circuit judges told those patients that they have no right to potentially lifesaving medical care.

The Fifth Circuit had no business hearing this case in the first place

This case never should have been heard by any federal court. That’s because it involves a fake dispute over a nonbinding document produced by the Biden administration.

Federal agencies sometimes issue binding regulations, which have the force of law, often impose new legal restrictions on private parties, and may be challenged in federal court.

The government also sometimes releases a nonbinding document, often referred to as a “guidance,” which explains how the federal government understands a particular law. One important difference between these nonbinding guidances and more formal announcements of new regulations is that a guidance does not impose any new legal obligations on individuals or businesses.

In 2022, the Department of Health and Human Services issued such a document “to restate existing guidance for hospital staff and physicians regarding their obligations under the Emergency Medical Treatment and Labor Act (EMTALA), in light of new state laws prohibiting or restricting access to abortion.” This guidance explained that EMTALA still requires most hospitals to provide patients experiencing a medical emergency with “stabilizing treatment within the capability of the hospital” — including, in appropriate cases, an abortion.

As the Fifth Circuit has acknowledged in the past, “an agency’s actions are not reviewable” by a federal court “when they merely reiterate what has already been established.” Similarly, the Fifth Circuit has also conceded, in cases that don’t involve abortion, that federal courts typically may not hear a lawsuit challenging a federal agency’s action when the agency “merely expresses its view of what the law requires of a party, even if that view is adverse to the party.”

So, when Texas and two anti-abortion groups filed this lawsuit, which challenges HHS’s 2022 guidance, the case should have immediately been tossed out.

Nevertheless, Engelhardt and his fellow Fifth Circuit judges used this fake dispute over a nonbinding document as an excuse not just to hear the Texas case, but to declare that HHS’s reading of EMTALA is wrong and that the statute must be read to exclude abortions. This error alone is sufficient reason for the Supreme Court to step in and toss Engelhardt’s decision in the garbage.

How Engelhardt justified rewriting EMTALA

Engelhardt’s opinion is surprisingly brief for such a consequential decision, and for one that reads a straightforward federal law in such a counterintuitive way. The section of the opinion laying out Engelhardt’s unusual reading of this federal law is only about eight pages long — yet it contains at least three separate legal errors.

For starters, Engelhardt places an enormous amount of weight on his claim that the EMTALA statute “did not explicitly address whether physicians must provide abortions.” He is correct that the word “abortion” does not appear in the EMTALA statute, but so what? Rather than itemizing every possible medical procedure that a doctor may need to perform during a medical emergency, EMTALA contains a blanket statement that hospitals must provide “such treatment as may be required to stabilize the medical condition” that caused a patient’s emergency.

The EMTALA statute also does not use words like “appendectomy” or “bowel resection.” That doesn’t mean that a patient who needs their appendix removed to treat a medical emergency or whose life is threatened by an intestinal blockage must simply lie in their hospital bed and suffer until they die.

Similarly, Engelhardt relies on a provision of federal Medicare law that says EMTALA should not be read “to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.” But there are two problems with reading this provision to create an abortion exception to EMTALA.

One is that this provision only applies to “any Federal officer or employee.” But, as the Justice Department explained in a recent brief to the Supreme Court, “EMTALA’s stabilization obligation was enacted by Congress, not imposed by a ‘Federal officer or employee.’”

The purpose of this provision is to prevent federal officials from second-guessing medical decisions made by doctors and their patients. But neither the text of EMTALA itself nor HHS’s guidance document interpreting EMTALA claims that doctors must perform abortions when they deem those abortions unnecessary. The law simply provides that, when a doctor does determine that an abortion is medically necessary and the patient consents to that treatment, then the hospital must provide it.

Engelhardt also points to a few provisions of EMTALA that require hospitals to stabilize a pregnant patient’s “unborn child” if the fetus is also experiencing a medical emergency. He claims that this language “requires hospitals to stabilize both the pregnant woman and her unborn child,” thus precluding an abortion. (Engelhardt does not appear to recognize that there are some cases where a patient cannot be saved unless their pregnancy is terminated.)

In any event, this apparent tension between a pregnant patient’s survival and that of the fetus is resolved by a provision that lays out hospitals’ precise obligations under EMTALA. A hospital is not required to perform an abortion against a patient’s wishes. Nor does it require the hospital to choose who lives and who dies in a sad case where one will die no matter what.

Instead, EMTALA states that a hospital meets its obligations if it “offers” the patient stabilizing treatment and informs that patient “of the risks and benefits to the individual of such examination and treatment.” So, in a case where a patient is forced to choose between an abortion, which will stabilize their own condition, or a treatment that would save the fetus but leave the pregnant patient at risk, EMTALA requires a hospital to offer the patient either treatment and to explain the terrible choice facing them. And then it requires the hospital to honor the patient’s choice.

In any event, there are some signs that the Supreme Court, even the same Court that recently overruled Roe v. Wade, will reject Engelhardt’s twisted reading of the EMTALA statute. Last October, the Ninth Circuit left in place a trial court decision holding that EMTALA means exactly what it says, and thus hospitals in Idaho must provide emergency abortions.

The Ninth Circuit’s decision is currently before the Supreme Court on its “shadow docket,” but the justices have sat on the case without deciding it for more than a month. That’s a sign that the most stridently anti-abortion justices may not have the votes to rewrite the EMTALA statute to exclude abortions.

Moreover, the fact that lower court judges disagree on whether EMTALA means what it says is a sign the Supreme Court is likely to review the Fifth Circuit’s decision. The justices frequently hear cases that divide lower courts, especially when two federal circuit courts disagree. So Engelhardt is unlikely to have the final word on whether states can ban medically necessary abortions.

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