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Texas sues Biden admin for requiring abortions in medical emergencies

Texas Attorney General Ken Paxton speaks to antiabortion supporters outside the Supreme Court following arguments over a challenge to a Texas law that bans abortion after six weeks. (Evelyn Hockstein/Reuters)
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Texas Attorney General Ken Paxton (R) sued the Biden administration over federal rules that require abortions be provided in medical emergencies to save the life of the mother, even in states with near-total bans.

“The Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic,” Paxton said in a statement announcing the lawsuit on Thursday.

The suit follows new guidance from the Department of Health and Human Services that asserted federal law requiring emergency medical treatment supersedes any state restrictions on abortion in cases where the pregnant patient’s life or health is at risk.

Earlier this week, the Biden administration sent a memo to state officials reminding them of an existing law called the Emergency Medical Treatment and Labor Act, which “requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary,” according to the HHS guidance. That requirement exists “irrespective of any state laws or mandates that apply to specific procedures,” the memo said.

HHS defended its guidance in a statement shared with The Washington Post Friday morning.

“Federal law is clear: patients, no matter where they live, have the right to emergency care — including abortion care, if their doctor deems it necessary,” an agency spokeswoman said in an email. “HHS stands unwavering in our commitment to protecting patients’ right to access the health- and life-saving care that they need and that is protected by federal law. We will continue doing everything we can in the fight to protect access to health care, including reproductive health care.”

Although the HHS guidance focuses on abortions performed in emergency situations, Texas officials have interpreted the memo as an order that all hospital emergency rooms must act as a “walk-in abortion clinic.”

“President Biden is flagrantly disregarding the legislative and democratic process—and flouting the Supreme Court’s ruling before the ink is dry—by having his appointed bureaucrats mandate that hospitals and emergency medicine physicians must perform abortions,” the lawsuit said.

The lawsuit challenges the Biden administration guideline on the grounds that it uses federal funds — because it ties compliance to Medicare funds and because Justice Department funding would be spent enforcing the federal law — in violation of the Hyde Amendment that bars federal spending to facilitate an abortion except in cases of rape, incest or the safety of the patient. The suit suggests that this guidance will “coerce healthcare providers to supply abortions outside the allowable scope under the Hyde Amendment.”

The complaint also argues that HHS should have subjected the guidance to a lengthy “notice-and-comment” process required of newly proposed rules from federal agencies. The Biden administration memo did not implement a new rule, but asserted that an existing law should be applied to abortions.

And it contends the guidance violates the 10th Amendment, along with a law that forbids “arbitrary and capricious” actions by federal agencies.

Texas has a near-total abortion ban with an exception that allows doctors to perform an abortion to save the life of a pregnant patient.

The White House denounced Paxton’s attempt to block the national mandate to require physicians to provide abortions in medical emergencies.

“This is yet another example of an extreme and radical Republican elected official,” White House press secretary Karine Jean-Pierre said in a statement on Thursday. “It is unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected under U.S. law.”

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