An ambulance in Austin (Photo by Jana Birchum)

Despite federal guidance requiring that doctors provide life-saving care in emergency rooms whether patients can pay for it or not, Texas can ban life-saving abortions in ERs, the conservative Fifth Circuit Court of Appeals decided this week.

Shortly after the Supreme Court overturned Roe v. Wade in June 2022, the Biden administration told hospitals that they “must” provide emergency abortion services if the life of the mother is at risk, because the federal Emergency Medical Treatment and Labor Act (EMTALA) passed in 1986 trumps state laws that block doctors from providing abortions.

Texas A.G. Ken Paxton sued over that guidance, claiming in the complaint that Biden was attempting “to transform every emergency room in the country into a walk-in abortion clinic.” The A.G. argued that EMTALA does not specifically name abortions or protect the right to “any specific treatment.”

The case initially went before U.S. District Judge James Wesley Hendrix, appointed to the Lubbock bench by Donald Trump in 2019. Hendrix agreed with the attorney general, but the Department of Justice appealed that ruling. The A.G.’s office argued that Texas law already allows for life-saving abortions, while an attorney representing the DOJ argued the U.S. Department of Health and Human Services’ has to ensure life-saving care is rendered in compliance with EMTALA, and “right now, HHS can’t ensure that the hospitals are following their obligations in offering the care that’s required.”

The Fifth Circuit decided Jan. 2 that the federal government’s interpretation of EMTALA expanded the scope. “We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child,” Judge Kurt D. Engelhardt wrote in the ruling. “EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt Texas law.”