UPDATED: Texas judge rules against HHS guidance regarding EMTALA and abortions

In granting a temporary injunction, a federal judge in Texas ruled that physicians cannot be required to perform abortions under the Emergency Medical Treatment and Active Labor Act (EMTALA). The ruling also means that physicians will not be protected for violating state law when performing an illegal abortion. The next day, CMS said that in light of the injunction, the Department of Health and Human Services (HHS), would not enforce earlier EMTALA guidance on abortions in Texas.

In issuing the temporary injunction August 24, US District Court Judge James Wesley Hendrix wrote that “ [HHS] 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.” 

Hendrix ruling came in a challenge to HHS guidance released in July,  reminding hospitals of their obligations under EMTALA to help pregnant patients who are experiencing a medical emergency, including pregnancy loss, but with an added emphasis that care must be offered “irrespective of any state laws or mandates that apply to specific procedures.” The memo was seen by many as one way the Biden administration was pushing back against the overturning of Roe v. Wade.

The guidance stated: “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. When a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”

Days after the guidance was released, the state of Texas sued, claiming the memo was an attempt to get around the Supreme Court ruling, which held that each state should be able to decide when or if abortions are allowed. Texas has one of the most restrictive laws against abortion. The temporary injunction was issued in connection with that suit.

In new one-page guidance issued August 25 by CMS to state survey agencies, HHS noted it would not enforce the interpretations issued in July in Texas or against members of two medical groups specifically identified in the injunction.

"Pursuant to the preliminary injunction in Texas v. Becerra, No. 5:22-CV-185-H (N.D. Tex.), HHS may not enforce the following interpretations contained in the July 11, 2022, CMS guidance (and the corresponding letter sent the same day by HHS Secretary Becerra):
"(1) HHS may not enforce the Guidance and Letter’s interpretation that Texas abortion laws are preempted by EMTALA; and
"(2) HHS 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 the members of the American Association of Pro Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA)."