Where Things Stand: Ken Paxton Sues To Stop Biden Abortion Mandate

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Texas Attorney General Ken Paxton (R) talks to reporters after the U.S. Supreme Court heard arguments in a case Texas brought against the Biden Administration about Title 42 on April 26, 2022 in Washington, DC. (Chip... Texas Attorney General Ken Paxton (R) talks to reporters after the U.S. Supreme Court heard arguments in a case Texas brought against the Biden Administration about Title 42 on April 26, 2022 in Washington, DC. (Chip Somodevilla/Getty Images) MORE LESS

July 14, 2022 6:23 p.m.

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Texas Attorney General Ken Paxton made a predictable move today. He filed a lawsuit challenging the Biden administration’s recent executive order asking the Department of Health and Human Services to take action to protect abortion access in the wake of Roe v. Wade’s overturning.

After Biden’s executive action, HHS in turn sent a directive to doctors and hospitals earlier this week, reminding them of federal law — that hospitals must give patients access to abortion medication in the event of a medical emergency, when the pregnant person’s life is in danger or a person is experiencing miscarriage complications.

Paxton filed the lawsuit in the U.S. District Court for the Northern District of Texas Thursday, arguing that the federal law HHS recently cited earlier this week, the Emergency Medical Treatment and Active Labor Act, does not grant one the right to an abortion.

Health and Human Services Secretary Xavier Becerra sent a letter on Monday to hospitals and doctors, reminding providers that federal law mandates they provide abortions to patients in the event that the patient will die if the abortion care is not provided or in the event of a miscarriage where the medication is necessary. Becerra noted that individuals and institutions that refuse to administer the drug or carry out the procedure in these situations could face fines and could potentially lose their Medicare funding status.

Becerra’s memo also noted that federal law overrides state laws, bans or restrictions on abortion care in these types of circumstances, in the wake of Roe’s demise.

“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,” Becerra wrote earlier this week. “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.”

It’s true that some (not all) of the new abortion restrictions being passed into law in red states provide some sort of carveout for medical emergencies, but HHS has said that it sent out the letter to discourage wary doctors in red states whose inaction in the face of legal confusion or caution may cost a patient their life. While Texas already had a six-week abortion ban on the books before Roe fell, the state’s 1925-era law, which completely outlaws abortion in the state, also came back into effect after the Supreme Court overturned Roe last month.

It’s one of two moves the HHS has made this week to help combat new red state restrictions on abortion access. HHS also sent out a memo to pharmacies on Wednesday informing them that refusing to fill prescriptions for birth control, other contraceptives, abortion medication, or discriminating against a pregnant person who is trying to fill a prescription, would put the pharmacy at risk of violating civil rights laws.

Paxton’s lawsuit argues that the federal law that HHS mentioned in its letter Monday, EMTALA, doesn’t cite any sort of specific medical treatment for saving a pregnant person’s life and claimed that the HHS directive is unconstitutional. He also argued that it was unenforceable.

You can read Paxton’s suit in full here, but the first line illustrates well the alternate reality that Paxton and those of his ilk live in: a world where abortions aren’t accessible even at times of emergencies, in ER rooms, at the cost of the patient’s life.

The White House responded to news of the lawsuit on Thursday afternoon.

“This is yet another example of an extreme and radical Republican elected official,” said the statement. “It is unthinkable that this public official would sue to block women from receiving life-saving care in emergency rooms, a right protected under U.S. law.”