Tex. v. Becerra

• Docket Number: 5:22-CV-185-H
• Decision Date: 23 August 2022
• Parties: STATE OF TEXAS, et al., Plaintiffs, v. XAVIER BECERRA, Secretary of Health and Human Services, et al., Defendants.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas

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STATE OF TEXAS, et al., Plaintiffs, v. XAVIER BECERRA, Secretary of Health and Human Services, et al., Defendants.

No. 5:22-CV-185-H

United States District Court, N.D. Texas, Lubbock Division

August 23, 2022

MEMORANDUM OPINION AND ORDER

JAMES WESLEY HENDRIX, UNITED STATES DISTRICT JUDGE.

The Supreme Court's holding in Dobbs that the Constitution confers no right to an abortion caused a sea change, generating novel questions about the interplay of federal and state law. This case presents one such question Does a 1986 federal law ensuring emergency medical care for the poor and uninsured, known as EMTALA, require doctors to provide abortions when doing so would violate state law? Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy. But in Dobbs's wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law. That Guidance goes well beyond EMTALA's text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment. As a result, the Court will preliminarily enjoin the Guidance's enforcement against the plaintiffs.

The Court will first explain how we got here and then detail why the plaintiffs have standing to challenge the Guidance. Turning from jurisdiction to the merits, the Court concludes that the Guidance extends beyond EMTALA's authorizing text in three ways: it discards the requirement to consider the welfare of unborn children when determining how to stabilize a pregnant woman; it claims to preempt state laws notwithstanding explicit provisions to the contrary; and it impermissibly interferes with the practice of medicine in violation of the Medicare Act. Because HHS's Guidance is a statement of policy that establishes or changes a substantive legal standard, it likewise was subject to notice-and-comment requirements-requirements unfulfilled here. In light of those conclusions, the Court enjoins the defendants from enforcing the Guidance and Letter's interpretation that Texas abortion laws are preempted by EMTALA. Additionally, the defendants may not enforce the Guidance and Letter's interpretation of EMTALA-both as to when an abortion is required and EMTALA's effect on state laws governing abortion-within the State of Texas or against AAPLOG's members and CMDA's members.

1. Background

In Dobbs v. Jackson Women's Health Organization the Supreme Court held “that the Constitution does not confer a right to abortion” and that “the authority to regulate abortion must be returned to the people and their elected representatives.” 142 S.Ct. 2228 2279 (2022). That decision had two effects that are relevant here. The first was the enactment, effectiveness, or reanimation of various state laws regulating abortion. The second was President Biden's Executive Order 14,076-”Protecting Access to Reproductive Healthcare Services.” 87 Fed.Reg. 42,053 (July 8, 2022).

A. Texas's Regulation of Abortion

When Dobbs issued, scores of state laws sprang into effect. Some of these laws were enacted in anticipation of abortion's return to state control; others predated Roe and had laid dormant for nearly fifty years. Texas has laws falling into both categories.

The Human Life Protection Act lies in the first-a so-called “trigger law.” HLPA takes effect on the “30th day after . . . the issuance of a United States Supreme Court judgment overruling, wholly or partly, Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), thereby allowing the states of the United States to prohibit abortion.” Act of May 25, 2021, 87th Leg., R.S., ch. 800, 2021 Tex. Sess. Law Serv. 1887 (H.B. 1280) (to be codified at Tex. Health & Safety Code Ch. 170A). The judgment in Dobbs triggered HLPA's 30-day clock, meaning it goes into effect on August 25, 2022. Dkt. No. 23 at 13.

When it takes effect, HLPA will prohibit abortion unless:

(1) the person performing, inducing, or attempting the abortion is a licensed physician;

(2) in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a lifethreatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced; and

(3) the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create:

(A) a greater risk of the pregnant female's death; or

(B) a serious risk of substantial impairment of a major bodily function of the pregnant female.

H.B. 1280 § 2 (to be codified at Tex. Health & Safety Code 170A.002(b)).

For HLPA's purposes, abortion “means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.” Tex. Health & Safety Code § 245.002. But the term “does not include birth control devices or oral contraceptives.” Id. And “[a]n act is not an abortion if the act is done with the intent to: (A) save the life or preserve the health of an unborn child; (B) remove a dead, unborn child whose death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy.” Id.

Texas's pre-Roe statutes remain on the books, too. In Texas, when the Supreme Court overruled Roe, these laws once again became enforceable. One such law criminalized abortion except when “procured or attempted by medical advice for the purpose of saving the life of the mother.” See Tex. Rev. Civ. Stat. arts. 4512.1-.4, .6 (2010) (former Tex. Penal Code arts. 1191-94, 1196 (1925)).

For complicated reasons not relevant here, the enforceability of that statute is unclear. In short, HLPA reflects a more recent, more specific regulation of abortion and, normally, a more recent enactment governing the same subject supersedes prior enactments. But the Texas Supreme Court-the final arbiter of Texas law-is currently considering whether the pre-Roe statutes are enforceable. In re Paxton, No. 22-0527, Dkt. No. 1 (Tex. June 29, 2022). A state-court judge had enjoined their enforcement, but the Texas Supreme Court stayed that injunction. In re Paxton, No. 22-0527, Dkt. No. 8 (Tex. July 1, 2022). Although far from definitive, that is good enough for the Court's purposes: the Court will treat the pre-Roe statutes as enforceable until the Texas Supreme Court dissolves its stay of the injunction barring their enforcement.

B. The Administration's Response

Dobbs's second effect was federal. Two weeks after Dobbs, President Biden issued Executive Order 14,076, requiring the Secretary of the Department of Health and Human Services (HHS) to “identify[] potential actions . . . to protect and expand access to abortion” and to “identify[] steps to ensure that . . . pregnant women . . . receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd.” 87 Fed.Reg. 42,053 (July 8, 2022).

Enacted in 1986, EMTALA prevents hospitals from discriminating against those without the ability to pay for necessary emergency care-a phenomenon known as “patient dumping.” Covered hospitals (those participating in Medicare with a dedicated emergency department, 42 U.S.C. §§ 1395dd(a), (e)(2) & 1395cc(a)(1)(I); see 42 C.F.R. § 489.24(b)(4)) must either stabilize a patient presenting with an “emergency medical condition” or transfer her to a hospital with facilities to do so. § 1395dd(b)(1). EMTALA defines “emergency medical condition[s]” as those that manifest themselves “by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in”:

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions- (i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

§ 1395dd(e)(1).

Violators face multiple sanctions. HHS can seek monetary penalties against institutions and individuals who fail to provide stabilizing care. § 1395dd(d)(1); 42 U.S.C. § 1320a-7a(c); see also 42 C.F.R. § 1003.500-20. Dumped patients and their kin can bring suit against the hospitals, too. § 1395dd(d)(2). And both facilities and individual physicians who violate EMTALA can be excluded from participating in Medicare and other federally supported programs. §§ 1395cc(b)(2) & 1320a-7(b)(5), (h). Whistleblowers are protected...