The Justice Department has said the federal Emergency Medical Treatment and Labor Act requires abortion care in emergency situations.
Winmill’s decision came after a late-night Tuesday ruling in Texas by US District Judge James Wesley Hendrix holding the US Department of Health and Human Services under Biden went too far by issuing guidance holding the same federal law guaranteed abortion care.
Hendrix agreed with Texas Attorney General Ken Paxton, a Republican, that the guidance issued in July “discards the requirement to consider the welfare of unborn children when determining how to stabilise a pregnant woman”.
Hendrix, an appointee of former Republican President Donald Trump, said the federal statute was silent as to what a doctor should do when there is a conflict between the health of the mother and the unborn child and that Texas’s law “fills that void.”
He issued an injunction barring the federal government from enforcing HHS’ guidance in Texas and against two groups of anti-abortion doctors who also challenged it, saying the Idaho case showed a risk the Biden administration might try to enforce it.
Hendrix declined, though, to issue a nationwide injunction as Paxton wanted, saying the “circumstances counsel in favor of a tailored, specific injunction”.
Appeals are expected in both cases and would be heard by separate appeals courts, one based in San Francisco with a reputation for leaning liberal and another in New Orleans known for conservative rulings.
Greer Donley, an assistant professor at the University of Pittsburgh Law School and expert on abortion law, said should those appeals court uphold this week’s dueling rulings, the US Supreme Court may feel pressured to intervene and clarify the law.
“Without a federal right abortion, this is the type of legal chaos that most people were predicting would be happening,” she said.
Shannon Selden, a lawyer at Debevoise & Plimpton who represents several medical associations supporting the Justice Department’s Idaho case, said “there’s a huge cloud over physicians’ ability to provide stabilizing care for patients who need it.”
“The Justice Department is trying lift that cloud through its Idaho action, and the Texas court has made that cloud darker,” she said.
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