Far-Right Judges Are Coming for Lifesaving Abortions

Abortion rights demonstrators listen to speakers during a Women's March in Austin, Texas, US, on Saturday, Oct. 8, 2022. On October 8th, exactly one month before Election Day, women and their allies marched across the country for a massive nationwide "Women's Wave" day of action meant to rally supporters of reproductive rights ahead of the 2022 midterms. Photographer: Montinique Monroe/Bloomberg via Getty Images — Photo: Montinique Monroe/Bloomberg via Getty Images

Update: January 8, 2024
On January 5, after this story was published, the U.S. Supreme Court agreed to hear Idaho’s emergency abortion case.

Less than a week into the new year, a federal appeals court has already issued a pernicious new decision in a Texas abortion case, setting the stage for the far-right’s escalating assault on reproductive rights in 2024.

The conservative 5th U.S. Circuit Court of Appeals ruled on Tuesday that Texas hospitals are not obligated to perform abortions to stabilize a pregnant patient facing a medical emergency. With a similar Idaho case under reconsideration by the 9th Circuit, the rulings tee up a Supreme Court battle on the question of emergency abortion care.

Under the 1986 Emergency Medical Treatment and Labor Act, or EMTALA, hospitals that receive Medicare funding — which is pretty much all hospitals — must perform emergency services, regardless of the patient’s ability to pay. The law has always been deeply insufficient in a disgraceful, life-denying health care system. Ensuring that vulnerable patients are not left to die by emergency rooms for lack of insurance or insufficient funds is the bare minimum; hospitals still chase patients for the unaffordable cost of emergency treatments following discharge. Until recently, however, the federal legislation has served as a weak protection for patients in need of lifesaving abortion care in red states. Now even that is being undermined.

The aim of the attorneys general in Texas and Idaho is above all to further the Republicans’ draconian agenda by eliminating all possible abortion law exemptions. These cases are prime examples of how the United States’ weak and piecemeal health care system makes such efforts all the more achievable.

Like every attack on reproductive liberties and bodily autonomy, the challenge to EMTALA’s reach in these cases is not only a further threat to the lives of women and other pregnant people: It is also part of an ongoing process by which Republicans, aided by the judiciary, are able to withdraw the already limited provision of essential health care. It must not be overlooked that the federal law in question was initially passed to prevent emergency rooms from “patient dumping” individuals unable to pay for their care. Attacks on reproductive liberties have always also been attacks on the poor.

In its original wording, EMTALA did not include an expansive list of every emergency medical condition potentially covered under its provisions. As such, nothing is explicitly noted about the provision of abortions. Following the fall of Roe v. Wade in 2022, the Biden administration published guidance emphasizing that EMTALA does cover abortion when deemed an emergency treatment, and that the federal law preempts state laws that would otherwise ban abortions in such cases. It takes an extraordinary perversion of logic to conclude that abortion treatment, if necessary to stabilize a patient, would fall outside the blanket law.

So degraded is the legal battle over reproductive rights that lifesaving medicine is the terrain.

But twisted logic is a 5th Circuit specialty. The judges — two appointed by Donald Trump and one by George W. Bush — ruled that should EMTALA conflict with Texas’s severe abortion restrictions, hospitals must follow the state law or face its extreme penalties. Under Texas law, abortions are only permitted if a patient is “at risk of death” or “serious risk of substantial impairment of a major bodily function”; doctors are never required to perform abortions, even if they are lifesaving. The ruling sends a message to health care providers that anything less than near death or bodily destruction will not suffice as grounds for a permitted abortion in the state.

Chris Geidner rightly noted in his LawDork newsletter that the panel’s reasoning involved “sloppy legal work at best, intentionally misleading at worst.” Still, the specious ruling sets up a Supreme Court challenge as to whether emergency abortions that stabilize a pregnant patient fall under federally required emergency health care — so degraded is the legal battle over reproductive rights that lifesaving medicine is the terrain.

Following the 5th Circuit’s decision, the Idaho attorney general wrote to the Supreme Court to urge the justices to take up that state’s case, on which the justices have been sitting for a month, arguing that the Texas ruling “shows” that Idaho is likely to win. So far, the Justice Department has not appealed the 5th Circuit decision, and the Supreme Court has not accepted Idaho’s case, but there’s little doubt that the EMTALA issue will reach the highest court, given the conflicts between state and federal legislation and the 9th Circuit opinion on the Idaho case expected this month.

If the Supreme Court eventually sides with Texas or Idaho, and once again against established law, it will be another lethal judicial decision, harming poor women of color, particularly poor Black women, the most. Anyone can face a life-threatening emergency during pregnancy; pregnancy is a dangerous condition. It is, however, disproportionately poor Black women who are unable to obtain the necessary medical care and checkups that can prevent emergencies in the first place. Now, even federally mandated emergency treatment is under threat.

This is why the fight for true reproductive justice has always been predicated on winning free, robust health care for all, while centrist Democrats have pushed only for an austere baseline of protection and provision. When a health care system provides only bare bones, it is at bare bones that the far right will pick.