know about Conflicting rulings on abortion hinder Biden’s response to the High Court (1)
Contradictory decisions in Texas and Idaho on the president
A page of 67 organizeissued by US District Judge James Wesley Hendrix in the Northern District of Texas on Tuesday, for now prevents Biden from enforcing in Texas his directive that emergency abortions for medical reasons take precedence over state bans on such procedures. A day later, US District Judge B. Lynn Winmill in Idaho said that federal law supersedes that state’s restrictions.
The two cases raise different legal questions: the Texas opinion revolves around administrative law issues, while the Idaho case tests whether federal law trumps state criminal law.
The conflicting opinions could, if upheld on appeal, send the matter to the same Supreme Court that overturned Roe v. Wade in June, health and administrative law attorneys said. Meanwhile, the Texas judge, appointed by the former president
The Justice Department “will continue to use every tool at its disposal to defend reproductive rights protected by federal law,” Attorney General
Both cases stemmed from Biden’s attempt to invoke the Emergency Medical Treatment and Jobs Act, a 1986 law that guarantees emergency medical care for the poor and uninsured, to justify access to abortions in medical emergencies. Hendrix found that the law does not explicitly mention abortion and therefore does not preempt the Texas law, while Winmill, appointed by President Bill Clinton, found that the law deals with emergencies and preempts the law of Idaho.
Biden and congressional Democrats are under pressure from progressives to enact new policies that ensure Americans maintain access to abortion in states that have restricted the procedure since the fall of Roe.
But Biden’s options without Congress are very limited. Without the votes to pass the legislation, his team turned to federal regulation and guidance on reproductive health care in hospitals, pharmacies and doctors’ offices that receive federal funds. She also called on Americans to vote for representatives who support abortion access.
By preventing Biden from enforcing the guidance in Texas, the judge may have helped Biden’s strategy to energize pro-choice voters.
The Biden team’s choice to keep abortion access in the news through lawsuits “even if they’re losing, is a politically smart move,” said Greer Donley, a University of Pittsburgh professor who studies abortion and the law.
Biden’s preliminary loss in Texas could make doctors more fearful of the legal repercussions of performing abortions, said Allison Hoffman, a health law professor at the University of Pennsylvania Carey School of Law. But the judge simply stopped the administration’s ability to enforce the guidance in Texas, not “the federal government’s ability to enforce the statute,” Hoffman said, so the protections EMTALA offers doctors remain in place.
If the Department of Health and Human Services appeals the Texas federal judge’s decision, it will be heard by the Fifth Circuit, which has 12 judges appointed by Republican presidents out of 17 active judges.
The Ninth Circuit would hear an appeal if Idaho files one. The appeals court has 16 judges appointed by Republican presidents out of 29 active judges.
Aside from legal challenges to abortion laws, Biden health officials said in July that pharmacists who refuse to fill miscarriage-control medications may be violating federal laws against sex discrimination. The guidance applies to approximately 60,000 retail pharmacies in the US that receive federal financial assistance.
The same officials issued separate guidance after Texas adopted its strict limits on abortion last year. Health care providers assess and stabilize patients regardless of “any state law or mandate that applies to specific procedures,” according to the memo.
Conservative politicians and the judges they appoint have historically rejected presidents issuing guidelines, saying such documents circumvent the need to collect information from the public. A Fifth Circuit judge in June, for example, rebuked guidance from the Centers for Medicare and Medicaid Services on its Covid-19 vaccination mandate for health care workers.
“What we’re seeing more of now is not so much the legal flaws in the administration’s position,” Seema Mohapatra, a health law professor at Southern Methodist University, said Wednesday before Idaho’s order. “We’re looking at the way different judges interpret things.”