U.S. District Judge James Hendrix on Aug. 23 blocked an attempt by the Department of Health and Human Services (HHS) to force Texas hospitals to provide abortions, even though the state bans the killing of unborn babies in almost all cases.

In July, following the Supreme Court’s Dobbs v. Jackson decision that overturned Roe v. Wade, the HHS announced new guidance regarding the Emergency Medical Treatment and Active Labor Act (EMTALA).

In a letter to health care providers, HHS Secretary Xavier Becerra said that if a pregnant patient “is experiencing an emergency medical condition as defined by EMTALA, and … abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”

Becerra added that if a hospital were to violate the guidance, it could be excluded from Medicare and state healthcare programs and also face civil monetary penalties.

Texas Attorney General Ken Paxton filed suit against HHS, saying the guidance went too far and would “transform every emergency room in the country into a walk-in abortion clinic.”

In a 67-page opinion, Judge Hendrix agreed with Paxton, saying the guidance “goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment.”

Further, the judge pointed out that the primary examples presented by HHS in the guidance—ectopic pregnancy, miscarriage and the life of the mother—are already addressed in Texas state law as exceptions for abortions.

Hendrix declined to issue a nationwide injunction, however, instead limiting the decision to the state of Texas.

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