Judge moves to protect ER doctors’ conscience rights

A federal judge in Texas blocked guidance by the U.S. Department of Health and Human Services that might have required emergency room doctors to perform abortions against their consciences.

In a 67-page opinion on Aug. 23, U.S. District Judge James Hendrix, a Trump appointee, concluded that the agency’s guidance—issued without notice or comment—was not authorized by a federal law.

On July 11, HHS’s Centers for Medicare & Medicaid Services stated that hospital emergency rooms must perform abortions if a physician determined they were necessary to save the mother’s life—even if state law would not allow abortion in that case. Yet challengers said that it went beyond life-saving measures and would require them to perform elective abortions that violate their religious beliefs about the sanctity of life.

At issue is a 1986 law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires that hospitals participating in Medicare either stabilize a patient presenting with an “emergency medical condition” or transfer her to a hospital with facilities to do so. Patients covered include both the pregnant woman and the “unborn child.” It defines an “emergency medical condition” as one where the health of the woman or her unborn child is in serious jeopardy, where there is a risk of serious impairment to bodily functions, or where there is a risk of serious dysfunction of any bodily organ or part.

An attorney for HHS argued that the guidance did not change existing law, yet the court rejected that attempt to tamp down concerns over the mandate’s effect. “The Court finds it difficult to square a statute that instructs physicians to provide care for both the pregnant woman and the unborn child with purportedly explanatory guidance excluding the health of the unborn child as a consideration when providing care for a mother,” the judge wrote.

He rejected arguments by HHS that Texas would be able to withhold life-saving treatment from a pregnant woman, noting the exceptions to Texas’ pro-life law. “These exceptions … accommodate the primary examples the defendants and their amici raise repeatedly—ectopic pregnancy, miscarriage, and the life of the mother,” Hendrix concluded. “To the extent that the guidance would require abortion where Texas would not, Texas law does so to ‘provide the best opportunity for the unborn child to survive.’”

Alliance Defending Freedom’s Ryan Bangert, who represents both the Christian Medical and Dental Associations and the American Association of Pro-Life Obstetricians and Gynecologists, two organizations that joined the lawsuit originally filed by Texas, sees an unstated objective behind the HHS guidance.

“So this was never a debate about whether or not physicians were going to treat women who are experiencing emergencies,” said Bangert. “Of course they will. And of course, Texas law always allowed that. There’s no question about that. This was really a fight over whether the feds could push the boundaries … [and] compel emergency room doctors to participate in … induced chemical abortions.”

Even though abortion-inducing drugs can have serious side effects, the U.S. Food and Drug Administration now allows them to be prescribed by mail. Bangert said that the new guidance opens the door to claims that abortions must be provided for the increased number of patients who will experience complications from a chemical abortion.

Dr. Mike Chupp, CEO of the CMDA, said the guidance, were it enforced, could have been career-ending for many of the organization’s members. “Pro-life doctors just don’t have a problem protecting mom and baby,” said Chupp, adding that the concern is that there is no safe harbor for a doctor or nurse who declines to participate in an abortion in a less-than-life-threatening situation. “Am I going to be under the feds’ gun if I don’t refer this patient to another state or to a place with a doctor that’s willing to do what this woman wants me to do?”

Tuesday’s ruling contrasts with a ruling Wednesday by a federal judge in Idaho that barred enforcement of a state law making it a crime for doctors to conduct an abortion unless the doctor in good faith believes the woman faces death from continuing the pregnancy. U.S. District Judge Lynn Winmill, a Clinton appointee, concluded that the more restrictive Idaho law conflicted with provisions in the EMTALA that defined emergencies involving pregnancy more broadly.

Hendrix’s ruling with respect to Texas law is limited in nature, only barring enforcement of the guidance against medical personnel in Texas and members of the two challenging associations of doctors. An appeal by HHS is expected.