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Texas Attorney General Ken Paxton sues Biden administration over abortion guidance

RACHEL MARTIN, HOST:

Texas Attorney General Ken Paxton has sued the Biden administration over its guidance about emergency abortions. On Monday, the administration reaffirmed federal rules from the Health and Human Services Department, saying women must have access to abortion services in situations where their life is in danger. But the lawsuit highlights the degree of conflict between federal and state law now that Roe's been overturned. Joining us to talk about it is Elizabeth Sepper. She's a professor at the University of Texas School of Law. Thank you so much for being with us.

ELIZABETH SEPPER: Thanks for having me.

MARTIN: May I ask you to begin by explaining Paxton's legal argument?

SEPPER: Yeah. So the argument is that the Emergency Medical Treatment and Labor Act, the federal law, doesn't preempt the Texas abortion ban. So Paxton says that EMTALA doesn't say anything specific about abortion, and therefore, hospitals don't have to provide abortion, but rather, EMTALA requires them to provide the care they would normally provide to patients.

MARTIN: How strong is that argument?

SEPPER: It's pretty weak. A lot of the cases that Paxton cites to involves different parts of EMTALA that don't have to do with what is called stabilization. So the guidance from HHS that we received this week says that when patients arrive with an emergency medical condition related to pregnancy and they need abortion care, that's part of what EMTALA requires. And that's pretty much been the law since EMTALA was passed way back in the early '80s, as the Emergency Medical Treatment and Labor Act, which requires treating emergency medical conditions of pregnant people.

MARTIN: So can you explain the real-world implications of what the Texas attorney general is arguing? I mean, if a person who needs an abortion because their life is in danger is denied one, I mean, what is the attorney general saying - that they're not entitled to that lifesaving procedure?

SEPPER: Yeah. So EMTALA requires hospitals to provide emergency medical care. The Texas abortion ban says they can't unless the person's life is at stake or where there's substantial impairment of a major bodily function.

MARTIN: OK, so there is an exemption if your life is being threatened.

SEPPER: There is an exemption if your life is in - at risk. But EMTALA is broader, and it requires hospitals to act. So basically, HHS issued this guidance earlier this week in part to tell hospitals, hey, you have to think about your obligations to patients in emergency conditions. You can't just think about your threat of criminal prosecution from Ken Paxton and the state of Texas. And we know what's happened under SB 8, where hospitals are - have been really only concerned about the state of Texas coming after them. They have engaged in really wide-ranging interpretations of the bans without treating patients in accordance with the standard of care.

So we've seen patients sent out of state when they were suffering from ectopic pregnancies. We've seen patients turned away because they were miscarrying. And so it was a real reminder from the federal government that hospitals are risking Medicare and Medicaid dollars if they send patients away. So Texas' lawsuit is meant to, again, shift the balance and tell hospitals not to treat patients in accordance with the standard of care.

MARTIN: What does this mean, though, for people in this actual moment who may be in need of an emergency abortion?

SEPPER: It means that we're dealing, as we have been dealing in Texas since SB 8 became law on September 1, with real uncertainty about what providers can do...

MARTIN: Yeah.

SEPPER: ...What the law even is, what an emergency is. And we know that pregnant people, people who are experiencing urgent situations, don't often understand what it means to meet these legal definitions, nor do doctors.

MARTIN: Elizabeth Sepper from the University of Texas law school. Thank you.

SEPPER: Thank you. Transcript provided by NPR, Copyright NPR.

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