After the release of Dobbs, pursuant to an Executive Order, the Centers for Medicare and Medicaid Services (a component of health and Human Services [“HHS”]) sent guidance (“Guidance”) to the directors of state healthcare agencies. The Guidance directed that, if a physician believes that a pregnant woman presenting at an emergency department is experiencing an emergency medical condition as defined by the Emergency Medical Treatment & Labor Act (“EMTALA”), and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. The Guidance further stated that when state law prohibits abortion and does not include an exception for the life and health of the pregnant person, or draws the exception more narrowly than EMTALA’s emergency medical condition definition, that state law is preempted by Federal law.

In State v. Becerra, 5:22-CV-185-H (N.D. Tex. Aug. 23, 2022), the plaintiffs moved for a temporary restraining order and preliminary injunction barring enforcement of the Guidance. The plaintiffs argued that the Guidance unlawfully requires abortions in situations where Texas outlaws them, thus infringing on Texas’s rights to legislate and enforce its abortion laws.

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Decision

The United States District Court for the Northern District of Texas granted a preliminary injunction to enjoin the Guidance’s enforcement, which barred the defendants from:

1. enforcing the Guidance’s interpretation that Texas abortion laws are preempted by EMTALA; and, 
2. enforcing the Guidance’s interpretation of EMTALA, both as to when an abortion is required and EMTALA’s effect on state laws governing abortion, within the State of Texas or against the plaintiffs’ members.

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Requirements for a preliminary injunction 

The Court noted that in order to obtain a preliminary injunction, a movant must demonstrate:

1. a substantial likelihood of success on the merits; 
2. a substantial threat of irreparable harm if the injunction does not issue; 
3. that the threatened injury outweighs any harm that will result if the injunction is granted; and,
4. that the grant of an injunction is in the public interest.

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Likelihood of success 

The Court concluded that the plaintiffs demonstrated a substantial likelihood of success on the merits of their claims. 

The Court explained that at the first step of the Chevron analysis, a court must determine whether Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. The Court held that Congress has not spoken to the precise question at issue: EMTALA’s requirements as they pertain to abortion. Outside of requiring delivery of the child when a mother experiences contractions, EMTALA provides no roadmap for doctors when their duty to a pregnant woman and her unborn child may conflict.

At step two of the Chevron analysis, the Court ruled that HHS’s interpretation of EMTALA, which eliminates the duty of emergency care to an unborn child when it conflicts with the health of the mother, was not a permissible construction of the statute. The Court explained that the text of EMTALA recognizes a presumption of non-preemption. It claims preemption only where a state law requirement directly conflicts with EMTALA requirements. Otherwise, state law controls. Because the EMTALA does not resolve situations where both a pregnant woman and her unborn child face emergencies, it does not preempt state laws addressing that circumstance. In such situations, doctors, in accordance with state law, must resolve the conflict.

The Court also held that the Guidance goes beyond the statute because it purports to require abortions when physicians believe an abortion will stabilize a pregnant woman’s emergency medical condition irrespective of the unborn child’s health and state law. However, under the plain language of EMTALA, physicians must provide care for pregnant women when their health is put in jeopardy and must do the same when the health of the unborn child is put in jeopardy. In such a case, the Court stated that it was difficult to square a statute that instructs physicians to provide care for both the pregnant woman and the unborn child with purportedly explanatory guidance excluding the health of the unborn child as a consideration when providing care for a mother.

Further, the Court noted that the Guidance impermissibly favors one procedure—abortion—over another. The plain language of 42 U.S.C. § 1395, and caselaw interpreting it, prohibits this type of interference.

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Other Factors

The Court also held that the other preliminary injunction factors (irreparable harm, the balance of harms, and whether the requested injunction will serve the public interest) were met in this case.