What the conflicting rulings in both Texas and Idaho emergency abortion cases mean

Near-total abortion bans went into effect in states like Texas, Idaho and Tennessee this week, after the U.S. Supreme Court’s decision to overturn the federal right to an abortion.

Texas and Idaho are involved in separate federal lawsuits that stem from guidance issued by the Biden administration’s Department of Health and Human Services in July. The statement reinforced the current obligation that physicians have to pregnant patients experiencing an emergency medical condition under an existing 1986 federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA).

“If a physician believes that a pregnant patient presenting at an emergency department 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,” the statement said. “When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

On July 14, Texas filed a lawsuit against the Biden administration over the guidance. Two days before Texas’s abortion trigger law went into effect on Aug. 25, a federal judge ruled against the Biden administration. Meanwhile, the Biden administration filed a lawsuit against Idaho on Aug. 2, arguing the state’s strict trigger law conflicts with EMTALA, a federal law. The day before Idaho’s trigger ban took effect on Aug. 25, a federal judge blocked a ban on abortions when pregnant women require emergency care.

Yahoo News spoke with Seema Mohapatra, M.D. Anderson Foundation endowed professor in health law at Southern Methodist University Dedman School of Law in Dallas, and Elizabeth Sepper, law professor at the University of Texas at Austin, to provide some clarity surrounding these emergency abortion care issues. Read their discussion below. Some answers have been edited for length and clarity.

Yahoo News: What prompted Texas to file a lawsuit against the Biden administration regarding emergency abortion care in the first place?

Seema Mohapatra: The Emergency Medical Treatment and Active Labor Act was basically enacted in order to require any hospitals that get any federal funding [to provide] any medically necessary emergency care. Early in July, the Biden administration directed the department to investigate or talk about how EMTALA is impacted by states that are passing these abortion restrictions in the light of Dobbs [v. Jackson] and Roe v. Wade being overturned.

The Department of Health and Human Services said in July that if a hospital is in a state that prohibits abortion and doesn't make any exceptions for the health or the life of the pregnant person, EMTALA would preempt that state law. This was not anything new, because EMTALA already requires that if somebody comes in with an emergency condition, that they have to be stabilized before they can be left in the hospital.

If, for example, somebody comes in with an ectopic pregnancy and needs abortion care in order to not be in a life-threatening situation, they would be required to make sure that the person is stabilized, which in that case would mean having an abortion.

What’s involved in the Texas lawsuit against the Biden administration?

Elizabeth Sepper: Texas filed this lawsuit to say, “Well, no, Texas law only allows abortions in situations where life is at stake” — so a narrower array of circumstances. Texas basically argues that this guidance from the Biden administration changes the law, that it's a new rule that applies to hospitals.

Texas can't just come in and say, We don't like this federal law from 1986. So what it's arguing instead is that the Department of Health and Human Services has essentially issued a new rule without going through the proper processes, without having the right authority and exceeding what EMTALA allows. What they’re asking for the court to do is to enjoin the guidance [this means the court would issue an injunction preventing the government from enforcing the guidance].

So part of the Biden administration’s response to this lawsuit is even if you enjoin the guidance here, nothing changes because the real conflict is from EMTALA, not from the guidance. The guidance is just reiterating what has been the obligation of hospitals for 40-some years.

Mohapatra: Basically in the Texas lawsuit, the judge [U.S. District Judge James Wesley Hendrix] ruled that the Health and Human Services guidance, which cites EMTALA, was unauthorized, and the judge interpreted that as going beyond EMTALA's text. And then basically also interpreted EMTALA as requiring a consideration of both the pregnant person and the unborn fetus. ... So essentially the bottom line is, in Texas, a physician that is seeing a patient, let's say [who] has an ectopic pregnancy that [results in] an incomplete miscarriage, and [who] would need a D and C (dilation and curettage procedure) or abortion care in order to be stabilized, [the physician] would have to wait until that person is kind of near death in order not to violate Texas’s abortion ban because EMTALA doesn't apply in those situations, according to this judge.

What’s involved in the Biden administration’s lawsuit against Idaho?

Sepper: The Biden administration is suing because of a conflict between the Idaho total abortion ban [beginning Aug. 25], which says no abortions except to save lives, and federal law (EMTALA), which says that hospitals have to provide abortions to treat emergency medical conditions. EMTALA is a slightly broader category than lifesaving abortions. It could be abortions where health is in serious jeopardy, for instance.

Mohapatra: Basically, the government's position is that the way that EMTALA defines emergency medical care is broader than what the state of Idaho is allowing. It's broader than just treatment to avoid death. So it includes treatment that would be necessary that if a person's health is in serious jeopardy, if there's going to be any kind of serious impairments to bodily functions, an organ, for example, rupture of a uterus, which could be possible for when you are having an ectopic pregnancy or some kind of emergency situation like that.

So in Idaho, the federal judge (U.S. District Judge B. Lynn Winmill) ruled that because of the supremacy clause in the constitution, federal law trumps state law and the state abortion ban, because it would be impossible for a physician to comply with both the state abortion law and the federal law that protects emergency health care in these situations.

What happens if hospitals don’t comply with EMTALA?

Sepper: EMTALA comes with civil penalties. A hospital that fails to provide what's called stabilizing treatment to a patient can face civil action from the person denied care, but also from the federal government. So hospitals are not keen to bring down the federal government upon them for denial of an emergency treatment.

Hospitals agree to comply with EMTALA as a condition of receiving Medicare money. It's part of their contract with the federal government, so you could be excluded eventually from Medicare for violating those terms. But typically, an EMTALA violation can come with a $50,000 fine per violation.

What happens now in the Texas and Idaho cases?

Sepper: The Constitution says that federal law is supreme. It's known as the supremacy clause. So where we have a direct conflict between state law and federal law, the federal law preempts the state law. So part of this litigation is figuring out whether and to what extent there’s a direct conflict between Idaho law, for example, and Texas law, with the federal law on the other hand.

Mohapatra: What we are going to see is this play out over the next year or so, and it’s going to be interesting to see the different legal theories to see if at one point there is going to be a direct issue that the Supreme Court has to rule on.

In both of these cases [Texas and Idaho], we’re not talking about people that are coming in for elective abortions. We’re talking about cases where people have wanted pregnancies and are having these very serious, life-threatening complications where their lives are at risk. And unless they get this procedure, they’re not going to be able to survive. And so it is a very serious situation, even though it’s a narrow set of cases, a pregnant person in Idaho can sleep better compared to a pregnant person in Texas because of this interpretation of these federal laws.

This article has been updated with information on the federal judge rulings in Texas and Idaho.