It’s Now Even More Dangerous to Be a Pregnant Person in Texas

In 2022, Biden reminded doctors they're obliged to provide emergency abortion care despite state laws, citing a federal law called EMTALA. Texas sued and won.

It’s Now Even More Dangerous to Be a Pregnant Person in Texas
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On Tuesday evening, the famously conservative Fifth Circuit Court of Appeals in Texas ruled that emergency rooms aren’t required to perform life-saving abortions under the Emergency Medical Treatment and Labor Act (EMTALA), regardless of federal guidance.

EMTALA, passed in 1986, requires doctors to provide stabilizing, emergency care to patients—including those experiencing pregnancy-related complications. So, Texas has effectively ruled that hospitals should let pregnant people facing life-threatening complications die.

The ruling comes after Biden issued guidance on hospitals’ obligations in 2022 when the Supreme Court overturned Roe v. Wade. Biden cited EMTALA and reminded doctors they’re still required to provide emergency abortion care, even if doing so is at odds with state laws. In response, the state of Texas—represented by Attorney General Ken Paxton and joined by the American Association of Pro-Life Obstetricians & Gynecologists and Christian Medical and Dental Associations—sued, and in August 2022, a federal district judge sided with them, granting an injunction to temporarily block Biden’s guidance. Shortly after, Biden appealed this ruling, and the case was taken up by the Fifth Circuit. During arguments for the case in November, the Fifth Circuit claimed the Biden administration was trying to weaponize EMTALA to allow emergency abortions under “broader categories” like “mental health or whatever else HHS [the Department of Health and Human Services] would say an abortion is required for.”

“EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt Texas law,” Judge Kurt D. Engelhardt, who was appointed to the court by former President Trump, wrote on Tuesday. This is an appalling statement in any context but especially given that these situations are the ones EMTALA exists to address. In the state of Texas alone, numerous women have sued the state after nearly dying from being denied or receiving extremely delayed emergency abortion care amid life-threatening complications due to the state’s near-total abortion ban. Some now face the prospect of future infertility. Engelhardt is accusing these women of trying to kill their “child.” Elsewhere in the ruling, Engelhardt wrote that “EMTALA does not govern the practice of medicine”—which it literally does. This claim is just another attempt to separate abortion from all other health care.

In a statement shared with Jezebel, Rabia Muqaddam, senior staff attorney at the Center for Reproductive Rights, said the Fifth Circuit’s ruling “shows a complete disregard for the lives of pregnant people.” She continued, “It suggests that everyone who goes to an emergency room in Texas is entitled to stabilizing care under EMTALA—unless they happen to be a pregnant person who needs an emergency abortion to be stabilized.”

Katie O’Connor, director of federal abortion policy at the National Women’s Law Center (NWLC), told Jezebel that litigation like this is meant to “intentionally create chaos and confusion for doctors and pregnant people.” She notes that across the country, where abortion is banned, doctors “are scared to act even when they know what the right thing to do is medically.” In Texas, abortion providers face the threat of life in prison and fines of up to $100,000 for offering care if the state deems that their patient isn’t sufficiently on the brink of death. Doctors are among the plaintiffs who have sued Texas over its abortion ban’s medical emergency exception, which they argue is too ambiguous, compelling doctors to delay or deny emergency abortions altogether.

Just last month, the Texas Supreme Court rejected a plea from a woman named Kate Cox who was carrying a nonviable pregnancy that severely threatened her safety and future fertility. The court laid the blame on her doctors for failing to “attest to the court” that “Ms. Cox’s condition poses the risks the exception requires.” To O’Connor, the Fifth Circuit’s ruling this week and the Texas Supreme Court’s December ruling reflect how “everyone is trying to deflect and point blame on someone else when these horrific things happen” under abortion bans. Courts and anti-abortion politicians blame doctors for not knowing how to interpret medical emergency exceptions, or suggest a law like EMTALA—which is designed to save pregnant people’s lives—is somehow unrelated to emergency abortion care.

In May, the Health and Human Services Department’s Centers for Medicare & Medicaid Services (CMS) concluded an investigation into two hospitals that turned away a Missouri woman who needed an emergency abortion for severe pregnancy complications. CMS determined that the hospitals had violated EMTALA for their treatment of the woman, Mylissa Farmer, whose water broke at 17 weeks in 2022, and who faced increased risk of sepsis, loss of her uterus, and even death. After being turned away by several nearby hospitals and directed to an anti-abortion crisis pregnancy center by her state representative, Farmer traveled out of state for care; by the time she reached a hospital in Illinois, she was already in labor. Michelle Banker, an attorney at NWLC who represented Farmer, told Jezebel at the time that the CMS’ ruling offered necessary clarification that “hospitals, nationwide, really must take heed and know there are consequences for violating EMTALA” and “when a patient comes to them with a condition like Mylissa’s, they do not need to—and must not—wait until the patient is on the brink of death to provide care.”

The Biden administration hasn’t yet responded to the Fifth Circuit’s ruling as hospitals across the country descend into further chaos. But I’m left reflecting on Texas’ vile complaint against Biden’s guidance in 2022, and how plainly it laid out its disdain for women and pregnant people’s safety. The complaint called Biden’s guidance an “attempt to… transform every emergency room in the country into a walk-in abortion clinic.” It continued, “[EMTALA] does not guarantee access to abortion. On the contrary, EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child.” Under this interpretation, “people” aren’t living pregnant people, only fetuses are. “They are just incredibly divorced from reality,” O’Connor told Jezebel of Texas anti-abortion leaders. And it’s “doctors and patients, pregnant people and families” who pay the price.

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