Near-total abortion bans went into effect this week in Texas, Idaho and Tennessee following the Supreme Court’s June decision to overturn the federal right to an abortion. Texas and Idaho are involved in separate lawsuits that stem from guidance restated by the Biden administration concerning the emergency care of a pregnant person under the Emergency Medical Treatment and Active Labor Act of 1986. Yahoo News spoke with Seema Mohapatra, law professor at Southern Methodist University at Dedman School of Law in Dallas, and Elizabeth Sepper, law professor at the University of Texas at Austin, to provide some clarity on these lawsuits and emergency abortion care.
SEEMA MOHAPATRA: So there are numerous trigger laws that went into effect. And the biggest change for Texas' is trigger law is that now there is much greater penalties for abortion providers than before. Because, essentially, since Roe v Wade was overturned, there has not been access to abortion in Texas.
There are criminal penalties. There's $100,000 civil penalty. And there is loss of licensure potentially and similar restrictions in other states.
ELIZABETH SEPPER: Idaho's law has an exception only for abortions necessary to preserve a person's life and requires that doctors raise that as an affirmative defense. So after they've been charged with a criminal abortion, they can argue that the abortion was necessary to save someone's life.
SEEMA MOHAPATRA: EMTALA, the Emergency Medical Treatment and Labor Act, was basically enacted in order to require any hospitals that get any federal funding from providing any medically necessary emergency care. Early in July, the Biden administration directed the Department of Health and Human Services to kind of investigate or talk about how EMTALA is impacted by states that are passing these abortion restrictions in the light of Dobbs and Roe v. Wade being overturned.
MERRICK GARLAND: In the days since the Dobbs decision, there have been widespread reports of delays and denials of treatment to pregnant women experiencing medical emergencies. Today, the Justice Department's message is clear-- it does not matter what state a hospital subject to EMTALA operates in. If a patient comes into the emergency room with a medical emergency jeopardizing the patient's life or health, the hospital must provide the treatment necessary to stabilize that patient. This includes abortion when that is the necessary treatment.
SEEMA MOHAPATRA: This was not anything new, because EMTALA already requires that if somebody comes in with an emergency condition, that they have to be stabilized before they can be left in the hospital.
ELIZABETH SEPPER: Now, emergency medical condition under federal law includes things like serious jeopardy to the patient's health. So this is broader than the Idaho law, for example, which allows only life-saving treatment. That's a little bit narrower, right? There are things that put your health into serious jeopardy that don't yet rise to the level of life-threatening. Texas' law has an exception maybe somewhere in between, allowing abortions where there's a risk of serious impairment to a substantial bodily function.
Texas filed this lawsuit to say, well, no, Texas law only allows abortions in situations where life is at stake-- so a narrower array of circumstances. And Texas basically argues that this guidance from the Biden administration changes the law-- that it's a new rule that applies to hospitals.
SEEMA MOHAPATRA: What the Department of Health and Human Services sent out, the statement, is not an abortion mandate. That's what the state of Texas is calling it-- an abortion mandate. It is just restating EMTALA. Basically, in the Texas lawsuit, the judge ruled that the HHS guidance, which cites EMTALA, was unauthorized.
And the judge interpreted that as going beyond EMTALA's text, and then basically also interpreted EMTALA as requiring a consideration of both the pregnant person and the unborn fetus. So essentially, the bottom line is in Texas, a physician that is seeing a patient, like, let's say that had an ectopic pregnancy, that has an incomplete miscarriage, and that would need a D&C or abortion care in order to be stabilized, they would have to wait until that person is kind of near death in order to not violate Texas' abortion ban because the EMTALA doesn't apply in those situations, according to this judge.
So the Justice Department filed a suit to block Idaho's law. And the theory of that case is that it violates the Emergency Medical Treatment and Labor Act, EMTALA. And basically, the government's position is that the way that EMTALA defines emergency medical care is broader than what the state of Idaho is allowing.
So in Idaho, the federal judge ruled that because of the Supremacy Clause in the Constitution, federal law trumps state law and the state abortion ban, because it would be impossible for a physician to comply with both the state abortion law and the federal law that protects emergency health care in these situations.
ELIZABETH SEPPER: So the Constitution says that federal law is supreme. It's in a Supremacy Clause. So where we have a direct conflict between state law and federal law, the federal law does preempt the state law. So part of this litigation is figuring out whether and to what extent there's a direct conflict between Idaho law, for example, Texas law, for example, with the federal law on the other hand.
SEEMA MOHAPATRA: What we are going to see is we're going to see this kind of play out over the next year or so. And it's going to be interesting to see the different legal theories to see if at one point there is going to be a direct issue that the Supreme Court has to rule on. In both of these cases, we're not talking about people that are coming in for elective abortions.
We're talking about cases where people have wanted pregnancies and are having these very serious, life-threatening complications where their lives are at risk. And unless they get this procedure, they're not going to be able to survive. And so it is a very serious situation. Even though it's a narrow set of cases, a pregnant person in Idaho can sleep better compared to a pregnant person in Texas because of this interpretation of these federal laws.