On July 14, 2022, the Texas Attorney General filed a lawsuit against the United States Department of Health and Human Services ("HHS") and certain high-level HHS officials challenging HHS' guidance and Secretary Becerra's companion letter ("Guidance") issued three days after President Biden's July 8, 2022 Executive Order on Protecting Access to Reproductive Healthcare Services ("Executive Order"). The complaint asks the United States District Court for the Northern District of Texas to declare unlawful and set aside the Guidance on the grounds that the Emergency Medical Treatment and Labor Act ("EMTALA") does not provide a basis for the federal government to compel healthcare providers to perform abortions.

In its complaint, Texas alleges that the EMTALA is part of the Social Security Act, which prohibits federal officials from supervising or controlling the practice of medicine, the manner in which medical services are provided, or the administration or operation of any entity or individual providing medical services. Texas further claims that the EMTALA confers no right to any particular medical treatment, including abortion. Instead, Texas asserts that "the EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child," and that clearly, "abortion does not preserve the life or health of an unborn child."

The complaint suggests that Texas is injured because the Guidance attempts to unlawfully preempt its state laws. Specifically, Texas seeks to enforce its civil statute which, if not for the Guidance, would become immediately effective 30 days after the United States Supreme Court's decision in Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women's Health Organization, et al. The state civil statute, the Human Life Protection Act, would bar abortions in the state unless a woman "'has a life-threatening physical condition' arising from a pregnancy that places her 'at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed.'" Texas also seeks to enforce several of its criminal statutes predating Roe v. Wade, which would criminalize abortion in the state.

According to Texas, its abortion ban statutes are not preempted because their requirements do not directly conflict with federal law, given that the EMTALA neither requires access to abortion nor codifies a right to abortion. It will be interesting to see whether the courts find irony in the Texas Attorney General's position that that the Social Security Act, in particular the EMTALA, has no authority to dictate or control the practice of medicine (i.e., withholding certain medical treatments), and how the court rules regarding the preemption of EMTALA over contrary state law.

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