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That’s what happened on the first business day of 2024, when the ultraconservative U.S. Court of Appeals for the 5th Circuit ruled that a federal law requiring hospitals to provide emergency care doesn’t mean that they must perform abortions in situations when continuing the pregnancy would place the woman’s life or health in “serious jeopardy.”
If this sounds familiar, it should. Remember Kate Cox, the woman whose fetus suffered from a devastating genetic disorder and whose continued pregnancy threatened her fertility? The Texas Supreme Court turned her away — despite a state law that supposedly allows abortions when the woman’s life is in danger or there is “serious risk of substantial impairment of a major bodily function” — and she was forced to leave the state to obtain an abortion.
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Now comes the 5th Circuit — with a panel composed of two Trump-appointed judges and a third nominated by George W. Bush — to say that the federal emergency care law doesn’t help women in these desperate circumstances either.
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The 1986 law, known as Emergency Medical Treatment and Labor Act, or EMTALA, was intended to stop the practice of hospitals “dumping” indigent patients who turned up at emergency rooms. It requires them to provide offered “necessary stabilizing treatment” for “emergency medical conditions” or risk losing Medicare funding.
The Biden administration invoked the law in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, eliminating the constitutional right to abortion. The Department of Health and Human Services issued “guidance” to hospitals stating that they must provide abortions when a pregnant patient “is experiencing an emergency medical condition” and “abortion is the stabilizing treatment necessary to resolve that condition.”
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Texas sued, arguing that EMTALA doesn’t compel hospitals to perform abortions in emergency circumstances. A Trump-nominated district judge agreed, and the 5th Circuit on Tuesday upheld that ruling in an opinion written by Kurt Engelhardt and joined by fellow Trump nominee Cory Wilson and Bush-appointed Leslie Southwick.
“We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA poses equal stabilization obligations,” Engelhardt wrote.
The Biden administration’s brief in the case opened with a powerful description of the real-world stakes. “Sepsis, seizures, uncontrollable bleeding, organ failure, cardiac arrest — all of these can result from pregnancy-related complications, and all can lead to devastating medical consequences,” wrote Principal Deputy Assistant Attorney General Brian Boynton. “Texas asserts that it is a State’s prerogative to permit such harms. … But that is untenable: It jeopardizes the lives and health of individuals experiencing emergency pregnancy complications, and it forces emergency-room physicians to withhold treatment in the face of a patchwork of state restrictions and uncertain exceptions.”
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You would not know from the appeals court opinion that there are real people — real women, in tragic circumstances, whose rights are involved here. Women such as Amanda Zurawski, who suffered sepsis after her membranes ruptured at 18 weeks and she was denied an abortion because the fetus, which was not going to survive, still had a heartbeat.
Instead, the court seized on a provision of EMTALA that refers to “the health of the woman or her unborn child” to assert that Congress meant to put both the pregnant woman and the fetus on the same plane. “The text speaks for itself: EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child,” Engelhardt wrote. The law, he said, “does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations.”
Equal stabilization obligations. Women have to risk death because the fetus — the fetus they want to become their child — has some imagined equal status under the law to a living, grieving human being.
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I wish I could say that a decision the other way would have offered some real protection to Texas women. As a practical matter, with Texas Attorney General Ken Paxton’s mania to prevent women such as Cox and Zurawski from obtaining abortions, doctors and hospitals in the state can’t be blamed if they don’t want to risk criminal prosecution for performing abortions. At best, the Biden administration’s argument that EMTALA applies in such situations puts them in a bind between facing that risk and the threat of losing federal funds.
For better or worse, this decision isn’t the end of the dispute. The Biden administration made the aggressive move of suing Idaho, whose abortion law is even more draconian than Texas’s, allowing an exception only where the mother’s life is at risk.
A Clinton-nominated district judge sided with the administration, and an all-Trump panel of three appeals court judges ruled for Idaho. The full 9th Circuit will hear oral arguments in the case this month.
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In the meantime, the 9th Circuit reinstated the lower court order blocking Idaho from enforcing its abortion law in emergency rooms. The state has gone to the U.S. Supreme Court seeking to have that order overturned, complaining that the move “effectively turns EMTALA’s protection for the uninsured into a federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life.” No one who witnessed the justices’ performance in Dobbs should be confident about how they will rule.
Maybe I was naive, but I did not think, in the days after Dobbs, that we’d end up here, with arguments over whether to allow women to have abortions in these terrible situations. It’s not just a matter of common decency — it’s terrible politics for antiabortion forces to align themselves against sympathetic figures such as Cox.
That they have tells you all you need to know about their zealotry.
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Texas doesn’t care if pregnant women die. That comes as no surprise in the post-Dobbs abortion landscape. But it’s worth noting when the state’s unceasing cruelty is aided and abetted by federal judges.
That’s what happened on the first business day of 2024, when the ultraconservative U.S. Court of Appeals for the 5th Circuit ruled that a federal law requiring hospitals to provide emergency care doesn’t mean that they must perform abortions in situations when continuing the pregnancy would place the woman’s life or health in “serious jeopardy.”
If this sounds familiar, it should. Remember Kate Cox, the woman whose fetus suffered from a devastating genetic disorder and whose continued pregnancy threatened her fertility? The Texas Supreme Court turned her away — despite a state law that supposedly allows abortions when the woman’s life is in danger or there is “serious risk of substantial impairment of a major bodily function” — and she was forced to leave the state to obtain an abortion.
Now comes the 5th Circuit — with a panel composed of two Trump-appointed judges and a third nominated by George W. Bush — to say that the federal emergency care law doesn’t help women in these desperate circumstances either.
The 1986 law, known as Emergency Medical Treatment and Labor Act, or EMTALA, was intended to stop the practice of hospitals “dumping” indigent patients who turned up at emergency rooms. It requires them to provide offered “necessary stabilizing treatment” for “emergency medical conditions” or risk losing Medicare funding.
The Biden administration invoked the law in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, eliminating the constitutional right to abortion. The Department of Health and Human Services issued “guidance” to hospitals stating that they must provide abortions when a pregnant patient “is experiencing an emergency medical condition” and “abortion is the stabilizing treatment necessary to resolve that condition.”
Texas sued, arguing that EMTALA doesn’t compel hospitals to perform abortions in emergency circumstances. A Trump-nominated district judge agreed, and the 5th Circuit on Tuesday upheld that ruling in an opinion written by Kurt Engelhardt and joined by fellow Trump nominee Cory Wilson and Bush-appointed Leslie Southwick.
“We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA poses equal stabilization obligations,” Engelhardt wrote.
The Biden administration’s brief in the case opened with a powerful description of the real-world stakes. “Sepsis, seizures, uncontrollable bleeding, organ failure, cardiac arrest — all of these can result from pregnancy-related complications, and all can lead to devastating medical consequences,” wrote Principal Deputy Assistant Attorney General Brian Boynton. “Texas asserts that it is a State’s prerogative to permit such harms. … But that is untenable: It jeopardizes the lives and health of individuals experiencing emergency pregnancy complications, and it forces emergency-room physicians to withhold treatment in the face of a patchwork of state restrictions and uncertain exceptions.”
You would not know from the appeals court opinion that there are real people — real women, in tragic circumstances, whose rights are involved here. Women such as Amanda Zurawski, who suffered sepsis after her membranes ruptured at 18 weeks and she was denied an abortion because the fetus, which was not going to survive, still had a heartbeat.
Instead, the court seized on a provision of EMTALA that refers to “the health of the woman or her unborn child” to assert that Congress meant to put both the pregnant woman and the fetus on the same plane. “The text speaks for itself: EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child,” Engelhardt wrote. The law, he said, “does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations.”
Equal stabilization obligations. Women have to risk death because the fetus — the fetus they want to become their child — has some imagined equal status under the law to a living, grieving human being.
I wish I could say that a decision the other way would have offered some real protection to Texas women. As a practical matter, with Texas Attorney General Ken Paxton’s mania to prevent women such as Cox and Zurawski from obtaining abortions, doctors and hospitals in the state can’t be blamed if they don’t want to risk criminal prosecution for performing abortions. At best, the Biden administration’s argument that EMTALA applies in such situations puts them in a bind between facing that risk and the threat of losing federal funds.
For better or worse, this decision isn’t the end of the dispute. The Biden administration made the aggressive move of suing Idaho, whose abortion law is even more draconian than Texas’s, allowing an exception only where the mother’s life is at risk.
A Clinton-nominated district judge sided with the administration, and an all-Trump panel of three appeals court judges ruled for Idaho. The full 9th Circuit will hear oral arguments in the case this month.
In the meantime, the 9th Circuit reinstated the lower court order blocking Idaho from enforcing its abortion law in emergency rooms. The state has gone to the U.S. Supreme Court seeking to have that order overturned, complaining that the move “effectively turns EMTALA’s protection for the uninsured into a federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life.” No one who witnessed the justices’ performance in Dobbs should be confident about how they will rule.
Maybe I was naive, but I did not think, in the days after Dobbs, that we’d end up here, with arguments over whether to allow women to have abortions in these terrible situations. It’s not just a matter of common decency — it’s terrible politics for antiabortion forces to align themselves against sympathetic figures such as Cox.
That they have tells you all you need to know about their zealotry.
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