The U.S. Department of Health and Human Services (HHS), in the wake of the Dobbs decision from the Supreme Court overturning Roe v. Wade, recently announced it would be imposing a nationwide requirement on hospitals and emergency room physicians to perform abortions.

Texas, a pro-life state with laws that prohibit almost all abortions, is having none of it. It’s the first pro-life state to push back, in the form of a federal lawsuit.

“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,” Texas Attorney General Ken Paxton said in a press release announcing the lawsuit. “I will ensure that President Biden will be forced to comply with the Supreme Court’s important decision concerning abortion and I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”

The HHS abortion mandate, which was issued earlier this week, attempts to shoehorn an abortion requirement into the federal law known as the Emergency Medical Treatment and Active Labor Act (EMTALA).The HHS action follows swiftly on the heels of President Joe Biden’s July 8 Executive Order directing federal agencies under his control to do all they can to frustrate the impact of the Dobbs decision.

You may have never heard of EMTALA, but it’s the federal law that requires hospital emergency departments that accept payments from Medicare to provide treatment for patients even if they are unable to pay for the treatment.

HHS, by letter dated July 11, informed the nation’s hospitals that EMTALA requires them to perform abortions whenever there exists an “emergency medical condition,” and that EMTALA preempts any state laws to the contrary.

Texas, however, rejects HHS’ assumption that it has the authority to issue such a mandate and argues that even if it did, the mandate was issued improperly.  The lawsuit also alleges the mandate contradicts Texas law – which in this case is not preempted by federal law – and forces Texas physicians to possibly violate state abortion law in order to comply with the federal mandate.

In addition, Texas argues, the HHS abortion mandate violates the federal law prohibiting tax dollars from supporting abortion. According to the Complaint Texas filed in a federal district court in Lubbock:

“In addition, the Abortion Mandate conflicts with the Hyde Amendment, which prohibits federal dollars from being used to fund abortions except when the pregnancy is the result of rape or incest or the woman’s life is in danger. By conditioning the receipt of Medicare funds on providing abortions under the terms of the Abortion Mandate, Defendants are requiring the use of federal dollars to coerce healthcare providers to supply abortions outside the allowable scope under the Hyde Amendment.”

The net result of the HHS abortion mandate, according to Texas, “is that numerous physicians and hospitals in Texas will be threatened with extensive civil penalties [imposed by the federal government] and loss of livelihood as a result of following State law.”

Current Texas law, post-Roe, bans abortion except where a woman “has a life-threatening physical condition” arising from a pregnancy that places her “at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed.”

The case is Texas v. Becerra.


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