Biden Faces Abortion Tangle in Mixed Rulings on Emergency Access

Joel Rosenblatt and Robert Burnson
·4 min read
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(Bloomberg) -- The Biden administration’s effort to ensure access to abortions in medical emergencies notched a win and a loss in courts in the span of a single day, showing the difficulty the federal government will have in pushing its agenda in conservative states.

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Late Wednesday, the administration won a temporary block to an Idaho law that was due to go into effect Thursday and allowed for the prosecution of doctors who perform abortions. The ruling in Boise came even after Idaho legislators offered to change the state’s so-called trigger ban in response to US District Judge B. Lynn Winmill’s criticism that it conflicts with medical protections under a federal statute.

That decision came about 20 hours after a federal judge in Texas ruled the opposite -- stating that federal guidance that would pre-empt state limitations on abortions was “unauthorized” and can’t be enforced in Texas.

The mixed outcomes in preliminary rulings point to hotly contested court battles ahead over state limitations after the US Supreme Court in June overturned a federal right to abortion. That historic decision is likely to make the procedure largely illegal in half the country as pre-existing laws or new legislation aimed at limiting or eliminating abortion are enacted in conservative states.

Biden has faced pressure to respond to the Supreme Court’s ruling, and the US Department of Health and Human Services issued its guidance in July stating that the Emergency Medical Treatment and Labor Act, or Emtala, took precedence over any state law limiting emergency abortions. The case in Idaho is the Biden administration’s first lawsuit challenging state abortion limits, based on that statute. In Texas, that state sued the government.

“The Biden administration is nibbling at the edges,” said Lawrence Gostin, a professor at Georgetown Law School in Washington.

The win in Idaho will embolden the Justice Department to bring more such suits, though some will fail because they’ll be before judges more partial to states’ rights, Gostin said. He predicted the issue over whether abortion restrictions must conform to Emtala will eventually end up at the Supreme Court.

The Idaho judge, appointed by Bill Clinton, agreed with the Justice Department’s argument that an exemption in the measure allowing for abortions to prevent the death of a pregnant woman is too narrow. To comply with federal law, the US argued, doctors must be shielded from prosecution for cases in which an abortion is necessary to prevent serious jeopardy to a woman’s health.

In his ruling, Winmill said it’s “impossible” for physicians to comply with both the state statute that makes it illegal to perform an abortion unless the woman’s life is imperiled and the federal statute, which requires Medicare providers to render adequate emergency care.

Read More: Biden Bid to Ensure Emergency Abortion Access Rejected in Texas

The Texas judge, an appointee of Donald Trump, came to the opposite conclusion: Doctors should defer to Texas’s abortion law while the case plays out in court.

The White House noted the two diverging rulings in a statement Thursday.

“Americans across the country and of all backgrounds agree that women should have the right to make their own personal health care decisions and to receive life-saving medical care, without interference from politicians,” White House Press Secretary Karine Jean-Pierre said. “The president will continue to take action to protect women’s access to lifesaving health care.”

US Attorney General Merrick Garland said the Justice Department “will continue to use every tool at its disposal to defend the reproductive rights protected by federal law.”

Idaho Attorney General Lawrence Wasden has said the Justice Department’s suit filed earlier this month was “politically motivated.” A spokesman for Wasden’s office declined to comment on the ruling.

Emtala Rules

Under Emtala, emergency rooms must stabilize patients suffering an emergency medical condition. For pregnant patients, that could include an ectopic pregnancy, complications from a miscarriage, or preeclampsia.

Wednesday’s ruling in Idaho only applies to women who urgently require an emergency abortion, and doesn’t apply to the majority of patients seeking the procedure.

“But given that those women face grave harm, even death, winning this battle is critically important,” said Michelle Mello, a professor at Stanford Law School.

She said it’s also a relief for doctors, whose rights to determine when an abortion is medically necessary have been clouded by vague terms in some states’ abortion bans.

“There’s a lot of uncertainty right now about who gets to make that call,” she said. Wednesday’s ruling “could help people feel more legally comfortable returning that decision to doctors.”

The cases are US v. Idaho, 22-cv-329, US District Court, District of Idaho, Southern Division (Boise) and Texas v. Becerra, 22-cv-00185, US District Court, Northern District of Texas (Lubbock).

(Updates to include more details on Texas ruling.)

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