The Department of Health and Human Services last week issued a mandate ordering doctors to perform abortions if they determine a mother’s life is at risk, no matter what a state law might direct. In response, Texas is suing the Biden administration, with Attorney General Ken Paxton saying the mandate would permit “abortions under a whole new range of circumstances.”
HHS guidance attempts to use The Emergency Medical Treatment and Labor Act so that “[w]hen a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”
This means that even if a state’s laws carve out exceptions for the life of the mother, which Texas’ law does, the Biden administration’s radically pro-abortion HHS will have authority to expand these exceptions. This is the HHS led by Xavier Becerra, who infamously tried to sue the Little Sisters of the Poor into providing birth control. Don’t expect its new guidance to be used judiciously.
Expanding abortion access by any other name
This new HHS directive comes in response to President Joe Biden’s recent executive order on abortion, which directs various bureaus in his administration to do what they can to expand abortion access.
The Texas lawsuit argues that the Emergency Medical Treatment and Labor Act does not give HHS the authority to override individual states’ laws and that the mandate also runs afoul of the Hyde Amendment, which prevents federal funds from going to abortions.
The Biden administration will try to frame HHS’ mandate as a protection for women whose pregnancies put their lives at risk. In practice, however, this looks like another attempt by the Biden administration to stretch past its authority to expand abortion access.
All of the states with trigger laws that went into effect after Roe v. Wade was overturned include exceptions for the life of the mother. And despite what pro-abortion activists say, treatment for a tragic medical condition such as an ectopic pregnancy is not the same as an abortion. But none of this will stop the Biden administration from trying to win some political points by pushing pro-abortion policies.