From using anti-abortion rhetoric including “unborn children” and “life of the mother” to accusing the government of turning a “patient dumping” prohibition into an “abortion statute,” Fifth Circuit Court of Appeals judges in oral arguments Tuesday made no effort to mask their hostility to abortion.
The three-judge panel included Donald Trump appointees Kurt Engelhardt and Cory Wilson, plus Leslie Southwick, a George W. Bush pick.
The case centers on the clash between state abortion bans and the longstanding Emergency Medical Treatment and Labor Act (EMTALA). The federal Department of Health and Human Services sent around a memo after Dobbs reminding providers of their obligations to perform abortions as part of emergency stabilizing care, which set off the legal squirmishes.
The Texas case that reached the 5th Circuit Tuesday is a strange one, as the gap between what EMTALA demands and what Texas allows is very narrow. The HHS guidance emphasizes that abortions may be required in cases where dangerous medical conditions are likely to emerge; the Texas abortion ban exception requires those conditions to be present already.
Still, U.S. District Judge Wesley Hendrix handed down an injunction last August, siding with Texas and anti-abortion medical groups, which the government protests was overly broad.
“The court enjoined HHS from enforcing EMTALA’s requirements against plaintiffs as applied to all abortion care — even life-saving treatments to which no plaintiff objects,” government lawyers wrote in a brief.
While the 5th Circuit judges seemed eager to side with Texas on the merits, they showed slightly more interest in the government’s plea to narrow the underlying injunction. Towards the end of the arguments, they asked McKaye Neumeister, a Department of Justice lawyer, how she’d suggest they narrow the injunction.
Over in Idaho, a similar case had been progressing in favor of the government’s position. Back in August 2022, within hours of the Texas decision, a district court judge blocked Idaho’s abortion ban when a patient’s life is in danger after finding it to conflict with EMTALA.
In late September, though, Idaho got a lucky draw at the Ninth Circuit Court of Appeals with a three-judge panel composed entirely of Trump appointees. They disagreed with the district court, lifting the block on the abortion ban while the appeal proceeds.
“To read EMTALA to require a specific method of treatment, such as abortion, pushes the statute far beyond its original purpose, and therefore is not a ground to disrupt Idaho’s historic police powers,” the panel wrote.
Through EMTALA, the Biden administration has been trying to soften the blow of Dobbs, at least in the most extreme cases where denial of abortion care could result in serious injury or death. Red states’ pushback to any infringement on their bans will likely leave the question up to the Supreme Court, part of a flood of abortion litigation still rippling out from last June.
“It’s really only when state law is coming in and preventing physicians from exercising that medical judgment that physicians wouldn’t be able to provide any care” that meets the standard of EMTALA, the DOJ’s Neumeister said. “Under those circumstances only we’re saying state law is preempted because of that physical impossibility of following both.”