Fifth Circuit allows Texas to deny emergency abortions

The Fifth Circuit Court of Appeals upheld a lower court ruling in Texas that allows the state to ban emergency abortions, saying the current federal statute in the Emergency Medical Treatment and Labor Act (EMTALA) does not preempt state law banning the procedure.

In a ruling on Tuesday, the conservative majority appeals court said the US Department of Human Health Services (HHS) erred in its interpretation of EMTALA when the agency issued guidance in May 2023 to all hospitals participating in Medicare.

The decision is a blow to abortion rights activists in Texas who are fighting to expand abortion access in the state.

The HHS guidance told hospitals that they were “required under EMTALA to offer stabilizing care to patients in need of emergency care” and that the federal statute preempted any state anti-abortion laws that did not include exceptions that met its definition of a medical emergency. EMTALA.

But Texas Attorney General Ken Paxton disputed the guidance, saying no part of the law authorized the federal government to compel health care providers to perform abortions.

The Fifth Circuit agreed with Mr. Paxton and the district court, adding: “EMTALA does not grant an unqualified right to a pregnant mother to abort her child.”

Texas Attorney General Ken Paxton


After the overthrow of the Supreme Court Roe v. Wade in 2022, Texas enacted a strict anti-abortion law that criminalizes almost all abortions before a fetal heartbeat is detected, except in some vaguely described circumstances.

However, due to the law's non-specific nature, doctors have not been able to confidently provide the necessary care to pregnant patients who ostensibly meet the law's exemptions. Last month, Mr Paxton sent letters threatening legal action to hospitals where Kate Cox, a woman seeking a medically necessary abortion, could receive care.

The HHS guidance, issued shortly after the Supreme Court's ruling, was an effort to persuade states to allow medically necessary abortions to continue in order to avoid death or health risks.

Under the 1986 law, EMTALA, hospitals that receive federal funding must treat or stabilize a patient regardless of their ability to pay or insurance status. However, the law does not specifically define what medical treatments are necessary.

The Fifth Circuit said the HHS guidance “overrides EMTALA by mandating abortion.”

Rochelle Garza, President of the Texas Civil Rights Program and current Democratic candidate for Texas Attorney General; called the decision “deeply disturbing”.

“Hospitals and doctors should not have their hands tied when trying to provide life-saving care to their patients. This cruelty, spearheaded by AG Paxton, puts women at life-threatening risk,” Ms. Garza wrote in X.