Since the Supreme Court overturned Roe v. Wade on June 24, Americans have seen an unceasing stream of horror stories about pregnant women denied vital medical care because of state abortion bans. Anti-abortion advocates have responded by denying the fact that these bans restrict basic maternal care, placing the blame instead on doctors, hospitals, the media, and, well, me.
But in a decision on Tuesday, U.S. District Judge James Wesley Hendrix—a Donald Trump appointee—punctured these denials while blocking the Biden administration’s efforts to stop red states from killing pregnant people. Hendrix’s ruling made it painfully clear that stringent abortion bans are, indeed, the reason why Texas physicians can no longer treat pregnant patients with emergency medical conditions until they are on the brink of certain death. And he gave Texas the green light to continue denying abortions to people who need them for legitimate health purposes despite a federal statute protecting patients from such cruelty.
Tuesday’s decision in Texas v. Becerra blocks guidance that Biden’s Department of Health and Human Services issued in the wake of Roe’s reversal. That guidance reminded doctors of their obligations to treat pregnant people under the 1986 Emergency Medical Treatment and Active Labor Act, or EMTALA. That federal law imposes a baseline standard of care for emergency patients in hospitals that take Medicare funds (as most do). It requires these hospitals to provide “stabilizing treatment” to anyone with an “emergency medical condition” (or, if they can’t, transfer them to a facility that can).
On July 11, the department told hospitals around the country that “stabilizing treatment” may include abortions that would appear to be banned under state law. It clarified that when EMTALA conflicts with a state abortion ban, EMTALA wins out. In other words, a physician cannot legally refuse to perform an abortion that’s necessary to stabilize a patient just because that abortion is criminalized by the state. This guidance put Texas doctors in a tough spot: If they violated EMTALA, they would face civil penalties and risk their hospital’s Medicare funding; if they violated Texas law, they would face prosecution and incarceration.
Texas, joined by two anti-abortion medical groups, filed suit, alleging that the agency’s illegally limited the scope of the state’s abortion bans. The first ban, in effect right now, was enacted in 1857 to combat falling white birthrates. (Racist desires to increase white populations were a frequent catalyst for abortion restrictions during this period.) It criminalizes all abortions except those “for the purpose of saving the life of the mother.” The second ban, a trigger law that will take effect on Aug. 25, prohibits abortion unless the patient has “a life-threatening physical condition” due to pregnancy that puts her “at risk of death or poses a serious risk of substantial impairment of a major bodily function.” The third ban, S.B. 8, empowers vigilantes to collect $10,000 bounties from anyone who performs or “abets” an abortion after six week, and incorporates the same narrow medical exception. It has been in effect for nearly a year.
In his opinion on Tuesday, Hendrix found that the federal law, as interpreted by Health and Human Services, compels abortions that Texas has banned. Why? Because the federal guidance requires abortion when a patient is sick but not yet certain to die, while Texas permits abortion only once a patient starts dying, or becomes at extreme risk of losing a “major bodily function.”
Hendrix juxtaposed the two legal regimes to highlight their differences. As the judge wrote, EMTALA requires stabilizing treatment for any condition that “could reasonably be expected” to put the patient’s health “in serious jeopardy.” According to the Biden administration (and decades of medical experience), abortion is sometimes necessary to treat such a condition. But, Hendrix wrote, Texas “limits abortions to when the medical condition is life-threatening.” Mere “jeopardy” to a woman’s health doesn’t cut it.
Moreover, as the federal guidance explained and the judge noted, EMTALA encompasses a condition “that is likely or certain to become emergent without stabilizing treatment.” Texas, by contrast, requires the condition to be actively killing the patient or grievously damaging her bodily functions. Even if she is certain to develop a fatal condition because of her pregnancy, a Texas patient cannot, under state law, obtain an abortion before the condition emerges and precipitates life-threatening symptoms, according to Hendrix’s interpretation.
These draconian restrictions on emergency abortion are the reason why many Texas women have already suffered sepsis and hemorrhage after doctors refused to terminate their pregnancies. There are several fairly common medical conditions that harm pregnant patients without guaranteeing immediate death, as multiple experts attested during this litigation.
For instance, many women experience premature rupture of membranes, during which the amniotic sac ruptures before viability. This condition often leads to septic infection—which, in turn, can cause cardiac arrest as well as lung and kidney failure. Preeclampsia, another common complication in which a pregnant patient’s blood pressure spikes to dangerously high levels, poses similar problems. It can swiftly progress into eclampsia, causing life-threatening seizures, as well as kidney failure, stroke, coma, and cardiac arrest. Then there is the well-known problem of incomplete miscarriage, which may arise after a patient miscarries naturally, or begins a medication abortion. Whatever the cause, an incomplete miscarriage may cause uncontrolled bleeding, hemorrhage, infection, and death.
For many afflicted with these conditions, abortion is the gold standard of care. Yet the fetal heartbeat may continue well into a patient’s deterioration, leaving Texas’ abortion restrictions in place. When, then, is a patient close enough to death to justify an abortion? Texas doctors who terminate too early may have to justify their decision to prosecutors and a jury at the risk of imprisonment. So they have been waiting until patients develops a severe, life-threatening complications.
As a rule, when federal and state laws conflict, federal law prevails. Since EMTALA, as interpreted by the Biden administration, has broader health requirements than Texas law, it should preempt the state’s abortion ban. Hendrix, however, resisted this conclusion by zeroing in on a provision of EMTALA that specifies care for pregnant women. Hospitals, the statute says, must treat “the woman or her unborn child” if they are in “serious jeopardy.” This clause, Hendrix wrote, establishes “equal obligations to the pregnant woman and her unborn child,” creating “a potential conflict in duties that the statute does not resolve.” When medical emergencies “threaten the health of both the pregnant woman and the unborn child,” EMTALA defers to the state, which gets to “balance the health interests of a pregnant woman and her unborn child.”
Hendrix’s ruling, put simply, means this: EMTALA’s “explicit concern for the unborn child” permits state laws that favor the health of the fetus over the life of the woman. So the federal statute, Hendrix ruled, may not be used to mandate emergency abortions that Texas has criminalized. The administration cannot compel Texas doctors to prioritize the patient’s health over that of the fetus. And so he issued an injunction barring the federal government from enforcing its interpretation of EMTALA against Texas or members of the anti-abortion groups that joined the suit.
Ultimately, Hendrix’s reasoning is nonsensical. As Biden’s Justice Department points out, EMTALA doesn’t defer to a state’s balancing of interests between patient and fetus; it defers to the patient’s decision. The law guarantees that when a patient needs treatment for a pressing fetal complication, the hospital cannot turn her away. It does not, under any plausible reading, give state legislatures the power to mandate that doctors must attempt to save the fetus at the risk of killing the patient. Hendrix transformed a provision meant to protect pregnant women (by letting them decide whose health to prioritize) into a grant of power to state legislatures (by letting them elevate the wellbeing of a fetus over a patient). Hendrix’s decision also clarifies that despite all the caterwauling and denial by anti-abortion voices, who falsely claim that these laws don’t put women’s lives at risk, that’s exactly what they are meant to do.
Thankfully, Hendrix’s decision will not be the final word on this controversy. The Justice Department filed suit against Idaho’s stringent abortion ban, and it will receive a much friendlier reception in the liberal 9th U.S. Circuit Court of Appeals. It appears inevitable that different courts will issue conflicting decisions about pregnant women’s right to emergency care, all but ensuring that the Supreme Court will settle the issue. At that point, the justices who reversed Roe will have to confront the fallout of their decision directly, likely for the first time. They can either acknowledge the consequences of their ruling on women—or retreat into the same delusions that their anti-abortion allies have embraced to avoid responsibility for the brutality of post-Roe America.