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Texas Sues Biden Administration Over HHS Emergency Abortion Guidelines

Texas Sues Biden Administration Over HHS Emergency Abortion Guidelines

“These hospitals are now threatened with having to choose between violating state law under the threat of criminal penalty or jeopardizing their ability to participate in Medicaid.”

http://www.foxnews.com/politics/2017/05/09/texas-sanctuary-city-crackdown-ag-paxton-sues-austin-others.html

Texas Attorney General Ken Paxton filed a lawsuit against the Biden administration over Health and Human Services Department’s emergency abortion guidelines:

The Department of Health and Human Services said Monday that a federal law protecting access to emergency treatment means hospitals must provide an abortion if a doctor deems it necessary to stabilize a patient, even if the procedure isn’t legal under state law.

Texas Attorney General Ken Paxton said the federal rules fly in the face of the recent U.S. Supreme Court ruling to overturn Roe v. Wade, which triggered a near-total abortion ban in Texas. The Texas law bans all abortions from the moment of fertilization.

“They are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions,” Mr. Paxton said of the administration. “I will ensure that President Biden will be forced to comply with the Supreme Court’s important decision concerning abortion.”

The Biden administration threatened hospitals with fines or revoking Medicare status if they do not “provide emergency abortion treatment:”

“These hospitals are now threatened with having to choose between violating state law under the threat of criminal penalty or jeopardizing their ability to participate in Medicaid,” Paxton’s office argued in the suit.

Any ruling will likely be appealed. Paxton’s office argues that the federal guidance isn’t merely clarifying existing law but “includes a number of new requirements related to the provision of abortions that do not exist under federal law.”

“This administration has a hard time following the law, and now they are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions,” Paxton said in a statement. “I will ensure that President Biden will be forced to comply with the Supreme Court’s important decision concerning abortion and I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”

Texas Lawsuit Biden Abortion Guidance by Mary Elizabeth on Scribd

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Comments

I haven’t read the Biden guidelines, so this is confusing. What is meant by “stabilize” is the question. Traditionally, the issue has been when a woman’s “health” has been threatened, which can mean anything, including inconvenience, as opposed to “life” threatened.
I find it hard to believe that Texas law forbids an operation for an ectopic pregnancy, or for any other condition that truly threatened the survival of the mother.
If I am wrong I am eager to be corrected.

    Ironclaw in reply to MDP. | July 15, 2022 at 8:40 am

    As far as I know, no State outlaws ectopic pregnancies because they are not viable pregnancies so the surgery to correct the issue is not an abortion.

    NotCoach in reply to MDP. | July 15, 2022 at 9:37 am

    Ectopic pregnancies are just another stupid talking point of the left. Ectopic pregnancies, as noted below, are typically unviable pregnancies. No state prevents medical care for such pregnancies.

    Milhouse in reply to MDP. | July 15, 2022 at 9:42 am

    It doesn’t. There is no state whose law prevents any abortion that is necessary to save the mother’s life; there is no state where such a law is even proposed or contemplated. The whole campaign based on such cases is a big lie.

    In my opinion even if a state were to adopt such a law, that part of it would be unconstitutional, as violating the right to self-defense, which is protected by the ninth amendment and also implied by the second. But since nobody even wants such a law, it would never be enacted and thus no court would ever have an opportunity to consider it.

    Dimsdale in reply to MDP. | July 15, 2022 at 10:32 am

    The number of “medically necessary” abortions, most likely including ectopic “pregnancies,” is in the 1-3% range, if that. About 96-97% are elective, about 70+% convenience, and 30ish% economic (from memory; I can dig up the refs if needed, but DuckDuckGo is your friend).

    Given the very good and increasingly better medical techniques available, there is almost 0% necessity for abortions. If they weren’t so numerous, PP would not be closing shops in anti abortion states (7% of their business, my butt!).

    Lastly, regarding alleged medical threats to the mother, have any of these doctors or pols even hear of caesarian births?

    MDP in reply to MDP. | July 15, 2022 at 10:57 am

    Thanks all for input.
    I am an MD, but not a lawyer or administrator, etc., I think the question is in what way the feds might try to make use of the term “stabilize” and make it mean something that it doesn’t mean (cue Princess Bride) like a pregnant woman with an anxiety disorder needs to have her condition “stabilized”, and even if that is nonsense, they will try to withhold payment (Medicaid is administered by the state and includes state funds, but some also comes from feds, afaik) and make hospitals take them to court.
    Idk, that seems why Paxton is trying to preempt what doesn’t seem to make sense anyway.
    There are facts, and then there are the myriad ways that political actors in bad faith obscure them and manipulate.

      randian in reply to MDP. | July 15, 2022 at 2:10 pm

      a pregnant woman with an anxiety disorder needs to have her condition “stabilized”

      “Mental health” has been used as the get out of jail free card for anytime abortion. Any state that has such an exception has no abortion limits at all.

“Paxton’s office argues that the federal guidance isn’t merely clarifying existing law but “includes a number of new requirements related to the provision of abortions that do not exist under federal law.”

I literally LOLed at this one. Buddy, have you ever perused CMS regulations, guidance, and conditions of participation? It’s an entire system of regulation by fiat.

Not quite as blatantly unconstitutional as all the ATF regs, but only because participation in CMS is technically voluntary.

I don’t see how this suit succeeds. It seems that the feds are allowed to tie whatever strings they want to the funds they disburse. They have been given wide latitude in twisting the arms of physicians and hospitals, and this Supreme Court has already upheld the legality of forcing executive branch mandated medical procedures on unwilling health care workers.

    CommoChief in reply to bigskydoc. | July 15, 2022 at 8:26 am

    The admin can probably get away with changes for the next budget and or application/grant cycle. They can’t change participation requirements midstream because that’s retroactive. Of course the next Congress with a r majority may have a bit to say on the matter as well.

    The interesting question becomes why the admin is risking further evisceration of the administrative state given the ruling in EPA v West Virginia. Several members have a hostile view of this sort of thing philosophically and a clear majority exists to roll back excesses and abuses of authority.

    Setting yourself up to fail isn’t the best way to show you are ‘doing something’. Unless they are laying the ground work for a deliberate loss in CT to buttress their out of control judiciary narrative to build a case to stack the CT in the future. I don’t doubt they will use a loss that way but they ain’t clever enough to scheme this deliberately.

      taurus the judge in reply to CommoChief. | July 15, 2022 at 9:13 am

      I think it might be much more simple (Occam’s Razor)

      The left has taken a beating in several areas recently and their only real out is to attack, attack ,attack.

      Like the Japanese suicide charges in the Islands in WWII.

      They don’t have the luxury now with the elections looming to take it in stride and measure responses.

        CommoChief in reply to taurus the judge. | July 15, 2022 at 10:05 am

        Absolutely that makes the most sense in isolation; they gotta feed something to their base. If we take out the very high probability of long term or wider impact of another blow to the administrative state, this time self inflected, then sure.

        The problem, for them, is this could blow up in spectacular fashion. Every case of administrative overreach risks the CT continuing to pare back the much abused administrative state, perhaps so much so that it derails other d/prog priorities entirely.

          Voyager in reply to CommoChief. | July 15, 2022 at 11:03 am

          It could, but at the same time, what are the courts going to do about it if they simply continue anyways?

          The current argument seems to be that the conservative justifies were appointed by illegitimate presidents, so their rulings can be considered illegitimate as well. I’d expect that to start seeing more play going forward.

          CommoChief in reply to CommoChief. | July 15, 2022 at 4:02 pm

          Voyager,

          If the Biden Admin chooses to open up selective adherence to the judiciary then everyone gets a turn. The better question is what will you do? What will the American People do? Your crazy ass uncle?

          You, me and everybody else become just as free to begin choosing what rulings we accept. A very dangerous path and I doubt the admin tries it.

          Personally I will probably start with rejecting Wickard. How about you?

        Bongino calls it an “extinction burst”

    Edward in reply to bigskydoc. | July 15, 2022 at 9:55 am

    What the regulatory Feds can’t do is condition payment/participation on mandated violation of State criminal statutes.

    geronl in reply to bigskydoc. | July 15, 2022 at 10:11 am

    If the strings attached to funding is not a Constitutional federal issue, then it should be ruled unconstitutional.

    Dimsdale in reply to bigskydoc. | July 15, 2022 at 10:34 am

    It also begs the question, “what does Medicare have to do with pregnancies anyway?” Are they provided under Medicare?

    This is a real question, not rhetorical.

      Milhouse in reply to Dimsdale. | July 15, 2022 at 10:57 am

      Yes, Medicare covers people who have been eligible for SSDI for at least two years; SSDI covers people with a disability preventing employment that is expected either to last at least a year, or to result in death. Thus if a person capable of pregnancy has a long-term disability that has lasted two years, she’s eligible for Medicare.

        gonzotx in reply to Milhouse. | July 15, 2022 at 11:54 am

        As are drunks and drug addicts unfortunately

        Ironclaw in reply to Milhouse. | July 15, 2022 at 12:27 pm

        I believe we call those people capable of pregnancy women. Don’t be retarded like the communists are.

          Milhouse in reply to Ironclaw. | July 15, 2022 at 1:57 pm

          The entire point of the question we’re discussing is that most women on Medicare are not capable of pregnancy. Dimsdale was unaware that there were any who were, and therefore wondered what this could be about. The answer is that there are some, and this relates to them.

      jb4 in reply to Dimsdale. | July 15, 2022 at 11:07 am

      “Everyone eligible for Social Security Disability Insurance (SSDI) benefits is also eligible for Medicare after a 24-month qualifying period.”

      Therefore, there must be large numbers of “biological females” of child-bearing age on Medicare.

    caseoftheblues in reply to bigskydoc. | July 15, 2022 at 10:37 am

    And yet when Trump was in office the judicial branch wouldn’t let him stop providing federal funds for any reason at all….again and again judges ruled the feds had NO power to ever stop the flow of funds. Only Democrats are allowed to do that dontchaknow

      Milhouse in reply to caseoftheblues. | July 15, 2022 at 10:48 am

      Wrong.

      The federal government cannot impose conditions on funding to states. Only Congress can do so, and even then those conditions must be (1) explicit, and (2) not coercive. That means that while Congress can attach any explicit conditions it likes to new funding, it cannot do so for existing funding if the cut is so big that the states have no choice but to obey.

      Trump’s attorney general tried to cut funding to states based on a condition that Congress had not explicitly made. He can’t do that.

      The funding we’re discussing now is not to states, but to hospitals. Therefore these constitutional limits do not apply.

      gonzotx in reply to caseoftheblues. | July 15, 2022 at 11:55 am

      Always
      Remember the Wall money
      Or I say NO MONEY
      Couldn’t transfer funds from anywhere

        Milhouse in reply to gonzotx. | July 15, 2022 at 12:02 pm

        Congress did not appropriate any money for the wall. Trump tried invoking a state of emergency so he could move money around within the DOD appropriation.

    kelly_3406 in reply to bigskydoc. | July 15, 2022 at 1:51 pm

    Now that the bureaucracy has lost in West Virginia vs EPA, it is time to push back against onerous regulation in all federal agencies. The difference between the vaccine mandate and this is that SCOTUS has already removed the power for the federal government to mandate/regulate abortion without legislation.

“The Texas law bans all abortions from the moment of fertilization.”

IUDs work by preventing a fertilized egg from implanting. That would be protected by Griswold.

    healthguyfsu in reply to rhhardin. | July 15, 2022 at 9:07 am

    Actually most nowadays work by preventing fertilization blocking sperm access to eggs. Should fertilization occur, implantation success is minimized, but one would not know that this occurred beyond the initial countermeasure.

    NotCoach in reply to rhhardin. | July 15, 2022 at 9:39 am

    How do you figure that would be protected by Griswold? If that is the case why not classify abortions as birth control?

      rhhardin in reply to NotCoach. | July 15, 2022 at 10:00 am

      IUDs being birth control shows that language doesn’t take point of fertilization as a legitimate line.

        NotCoach in reply to rhhardin. | July 15, 2022 at 2:50 pm

        Calling IUDs birth control does not mean they are protected under Griswold. Furthermore Roe most likely would have prevented any state from making them illegal. We shall see what happens in the future.

      CommoChief in reply to NotCoach. | July 15, 2022 at 10:43 am

      Contraception works to prevent pregnancy. Abortion ends an existing pregnancy. Simple, distinct difference.

Texas republicans are voting themselves out of office, pretty much.

“Paxton’s office argues that the federal guidance isn’t merely clarifying existing law but “includes a number of new requirements related to the provision of abortions that do not exist under federal law.”

This is the key part. It’s pretty obvious that EMTALA is a validly made federal law, and thus overrides all state laws, and even state constitutions. So if an abortion is required by EMTALA but banned by TX law, EMTALA prevails. But that would not apply to one that EMTALA doesn’t require, but Becerra merely says it requires.

Bigskydoc points out that the precise boundaries of what EMTALA requires are rather fuzzy, because so much of it is not in the statute itself but in regulations that the statute authorizes. Those override state law too. But a mere statement by the HHS secretary is not a regulation. It’s just a private opinion, and can’t override a state law. And that’s what the court will have to determine.

Wish he cared more about the illegal immigration situation. Doesn’t seem to.

    Milhouse in reply to Virginia42. | July 15, 2022 at 10:59 am

    There’s nothing he can do about that. Immigration is entirely a federal matter, and the states are forbidden from enforcing it unless the feds ask them to.

      jb4 in reply to Milhouse. | July 15, 2022 at 11:15 am

      Even if courts were to decide it is an “invasion”? Or an action by the Executive branch to destabilize states?

      gonzotx in reply to Milhouse. | July 15, 2022 at 11:59 am

      BS
      Abbott can declare an invasion
      The optics of the Feds sending troops to fight with Texa National Guard to protect its borders would be worth the price of admission

      It’s the only way and the only way Abbott could EVER obtain any MAGA cred to run for President

      Right now he is showing what a coward he is and total RINO

      henrybowman in reply to Milhouse. | July 15, 2022 at 2:55 pm

      That’s not what the constitution says. The constitution says the feds have primacy over naturalization (citizenship). That’s not the same thing as immigration.

        Milhouse in reply to henrybowman. | July 15, 2022 at 7:45 pm

        Actually the constitution doesn’t give Congress any authority over immigration. That was intended to be entirely a state issue. Each state could decide who could enter it from outside the USA, and once someone was admitted to a state they automatically got access to all the other states as well. But the supreme court decided some time in the 19th century that immigration was “inherently” a federal power, so Congress not only has authority, it has plenary authority. Even the strictest originalists have so far shrunk from declaring all US immigration laws invalid.

      Ironclaw in reply to Milhouse. | July 15, 2022 at 3:44 pm

      The Constitution also says:

      Article IV

      Section 4
      The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

      Seems to me that Paxton should be suing the feds for this.

        Milhouse in reply to Ironclaw. | July 15, 2022 at 7:39 pm

        The Republican Guarantee clause is not justiciable. That was established back in the 1840s, during the Rhode Island revolution.

    Voyager in reply to Virginia42. | July 15, 2022 at 11:00 am

    As I recall, Texas lost most of those suites, or they are still ongoing.

    Basically if the Federal government decided not to enforce it’s laws, the courts have ruled it can do that.

    They’re doing some things, but there are limits.

      gonzotx in reply to Voyager. | July 15, 2022 at 12:00 pm

      The Dems ignore the courts and it’s past time the Republicans IG or all rulings pertaining to NOT stopping the invasion

2smartforlibs | July 15, 2022 at 11:44 am

What part of being remanded back to the state does the Dictator not understand? I mean out since of all of it.

    Milhouse in reply to 2smartforlibs. | July 15, 2022 at 12:06 pm

    Nothing has been “remanded to the states”. Dobbs merely reversed Roe and restored the status quo as of 1973. States are free to ban abortion, if they like. But valid federal laws still override all state laws. If Congress were to enact the result of Roe as a statute under the interstate commerce power, that would be the law of the land. Here he is claiming to be merely enforcing EMTALA, which is a valid federal law. Paxton doesn’t dispute that, but he claims that Becerra is sneaking in some things that aren’t in the law, and he’s only challenging those things.

      Ironclaw in reply to Milhouse. | July 15, 2022 at 12:33 pm

      It seems to me that they would be violating EMTALA if they were to do what the pedophile and his idiot want here. After all, EMTALA requires a hospital to stabilize the patient, not to kill them on purpose which would be the case were they silence a heartbeat.

      kelly_3406 in reply to Milhouse. | July 15, 2022 at 2:04 pm

      The SCOTUS decision in West Virginia vs EPA is designed precisely to address the extrapolation that the federal government seeks. If a plain reading of EMTALA does not clearly address abortion, then it should not override state law. Abortion has typically been treated separately from other medical procedures (e.g. Hyde Amendment which excluded federal funding for abortions).

henrybowman | July 15, 2022 at 2:52 pm

“I’ll assure the Left’s abortion agenda can’t reach Texas babies.”
“These hospitals are now threatened with having to choose between violating state law under the threat of criminal penalty or jeopardizing their ability to participate in Medicaid.”

This is how the scam works, you idiot… and your state eagerly participated.

“Our senator worked hard to get Texas federal money for our (hospitals, highways, etc.)!”
This statement is semantically equivalent to:
“Our senator worked hard to put Texas in even more federal chains and destroy our sovereign independence!”

    CommoChief in reply to henrybowman. | July 15, 2022 at 4:17 pm

    Henry,

    That’s a very important part that we often overlook. IMO, just block grant the Medicaid dollars and the other 80+ ‘welfare’ program dollars to the States. Cut ten % then allocate by number of CD plus 2 using the Senate pieces as a proxy for addressing economy of scale issues in rural States.

    Let each State legislature decide how to spend it. If CA wants to fund hobo condos at $400k each who cares? If Washington wants to fund open air opium dens in elementary school playgrounds good for them. Alabama and every other State can choose not to do those things and set our own criteria and requirements for eligibility.

      txvet2 in reply to CommoChief. | July 15, 2022 at 8:00 pm

      I have a better idea. Cut out federal welfare programs altogether, and let the states do as they will about it.

        henrybowman in reply to txvet2. | July 15, 2022 at 9:06 pm

        There’s no widespread constitutional justification for sending federal “grants” to states, either. And what justification there is requires that the expenditure benefit all states equally.

          CommoChief in reply to henrybowman. | July 16, 2022 at 5:04 pm

          Junk them all is much preferred but very unrealistic. Given that reality the better option, IMO, is a block grant. One string; it can’t be used for other purposes, only ‘welfare’.

          If CA uses it all up on the homeless in LA or SF that’s fine. If another State sets work requirements or a max number of months as a lifetime cap that’s fine as well.

          This guts a good portion of the federal bureaucracy who are no longer needed saving the cost of payroll, office and equipment leases, vehicles, websites, copy paper…..

          In addition it embraces Federalism which empowers the Red States to remain sane because they are not bound by the dictates of DC and the influence of national politics.