NEW ORLEANS – The Biden administration asked a federal appeals court Tuesday to uphold health care guidance issued in 2022 that says hospitals must provide abortions for women whose lives are at risk due to pregnancy.
A federal judge blocked enforcement of the guidance last year after the state of Texas and abortion opponents sued. Opponents of the guidance say Texas law already allows abortions to save the life of the mother, but that the federal guidance went too far, calling for abortions when an emergency condition is not present and eliminating obligations to treat the unborn child.
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McKaye Neumeister, an attorney with the Department of Justice arguing for the administration, said the district court judge who blocked enforcement wrongly ruled that the Department of Health and Human Services issued the guidance without first subjecting it to a required public comment period. Neumeister said the guidance wasn't new. It is, she said, a restatement of existing policy.
Judge Leslie Southwick appeared skeptical, noting that the guidance was issued shortly after the Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling that overturned abortion rights. “It seems to me that is a new statement because you have a new landscape," Southwick told Neumeister.
The guidance was based on the administration's view of the Emergency Medical Treatment and Labor Act of 1986. Judge Cory Wilson questioned whether the law applied to abortion care.
“There’s words in the statute that address the unborn child and the pregnant mother, but there’s no word in there that says abortion services,” Wilson said. “You're plucking words out of thin air and saying it's in the statute.”
Neumeister argued that the guidance provides needed safeguards for women, and that the district court order blocking the use of the guidance was an error with “potentially devastating consequences for pregnant women within the state of Texas.”
There was no indication when there would be a ruling from the judges — Southwick, a nominee to the 5th Circuit of former President George W. Bush; Wilson, and Kurt Engelhardt, both nominated by former President Donald Trump.