Hello! It’s the weekend, this is The Weekender. ☕
Since the early summer death of abortion rights, it’s been assured that different facets of the issue would occupy courts of all levels for years to come. Can states police what their inhabitants do across borders? Can states protect providers who travel from places where the procedure is banned? What can doctors do, and what can they be prosecuted for, given the often unspecific language of abortion bans?
This week, the federal court showdown centered on guidance issued by the Biden administration soon after the Dobbs ruling, and the federal law that undergirds it.
The guidance reminded physicians of the administration’s interpretation of the Emergency Medical Treatment & Labor Act (EMTALA) — that they must perform an abortion when necessary to stabilize a patient undergoing a medical emergency, regardless of state bans.
In Texas, the state and two anti-abortion physician groups sued the government, calling the memo an “abortion mandate” meant to overturn the Dobbs ruling.
Federal judge James Wesley Hendrix, a Trump appointee, ruled that the guidance went further than the underlying law, which, he argued, is silent on abortion. He stuck down the guidance within the state of Texas and nationwide, when it applies to members of the doctor groups.
In Idaho, a similar story had a different outcome. There, the Biden administration sued the state, saying that its new trigger law ran afoul of EMTALA by criminalizing abortion in every instance — except an affirmative defense physicians could use after being sued, that the procedure was necessary to avert imminent death. EMTALA mandates treatment to avert injury and damage short of that extreme.
Judge B. Lynn Winmill, a Clinton appointee, agreed with the government and blocked the new trigger law, which came online Thursday, when it conflicts with EMTALA.
The appellate level is unlikely to resolve the dispute: Idaho’s would go to the traditionally liberal 9th Circuit Court of Appeals, and Texas’ to the ultra conservative 5th circuit. We could be barreling towards a Supreme Court showdown.
A senior administration official said little about the cases and the government’s next steps Thursday — only that “HHS takes seriously our authority to enforce EMTALA.”
There could be a legitimate way for the high court to split the baby: Texas’ ban, which includes an exemption for medical emergencies that threaten serious bodily harm, seems less in conflict with EMTALA than Idaho’s — the very argument the government made in an attempt to prove that Texas lacked standing to bring suit in the first place.
Or, the Supreme Court could choose not to bother with the specifics, the better to strip the administration of one of the few abortion access tools it has left.
More on other news below. Let’s dig in.