Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of August 30

August 31, 2022

Federal litigation was in the spotlight last week with two major decisions related to the Biden-Harris administration’s Emergency Medical Treatment and Labor Act (EMTALA) guidance on providing abortion services as emergency medical care. There was also a potentially significant federal class action filed against Texas that could test the ability of states to enforce abortion bans extraterritorially. Finally, we continued to see action on state-level litigation and state legislative efforts.

EMTALA Decisions in Idaho and Texas

The US Department of Health and Human Services (HHS) issued guidance in July 2022 stating that federal law under EMTALA requires hospital emergency departments to provide necessary stabilizing treatments to all individuals who arrive at an emergency department while experiencing a medical emergency, including abortion services that are arguably banned under restrictive state laws. This interpretation would permit hospitals to continue providing abortion services when medically necessary, such as to treat an ectopic pregnancy, severe preeclampsia, or complications threatening septic infection or hemorrhage, even in states that only permit abortion when necessary to save the life of the pregnant person.

The Texas attorney general filed a lawsuit in the US District Court of the Northern District of Texas seeking to have the guidance declared unlawful on July 14, 2022—three days after it was issued. On August 2, 2022, the US Department of Justice (DOJ) brought an action against Idaho’s soon to be effective ban on abortion using the HHS guidance. The DOJ requested a declaratory judgment stating that Idaho’s ban, which allows physicians to perform an abortion when necessary to prevent the death of the pregnant person, conflicted with EMTALA’s requirements.

Decisions in both cases were released last week. On August 23, 2022, the Northern District of Texas granted the Texas attorney general’s request for an injunction against enforcement of the HHS guidance, finding that the text of EMTALA did not support HHS’s position and that HHS failed to follow required procedures for issuing the interpretation. The scope of the injunction was limited to Texas and the plaintiffs named in the case.

The very next day, a federal district court in Idaho issued an opinion granting the DOJ’s motion for an injunction against Idaho’s law, holding that there were scenarios where the law conflicted with EMTALA’s requirements and prohibiting Idaho from enforcing its law in a manner inconsistent with EMTALA.

The rulings in both cases are likely to be appealed. The Biden-Harris administration may also bring EMTALA claims against other states with restrictive abortion laws. Ultimately, the US Supreme Court may have to weigh in on this question.

Texas Federal Class Action

Fund Texas Choice, along with a group of other reproductive rights organizations, filed a class action against Texas Attorney General Ken Paxton in the US District Court for the Western District of Texas on August 23, 2022. The suit asks the court to block Texas from enforcing its abortion laws in a manner that makes it illegal for the groups to (1) fund legal out-of-state abortions for pregnant Texans, including by paying for or reimbursing individuals for those services; (2) provide information and planning assistance to Texans traveling out of state to receive abortions legal in another jurisdiction, including by organizing and funding transport and lodging; and (3) transport pregnant Texans to out-of-state licensed providers of legal abortion services.

If the suit is permitted to proceed, it would be the first to consider the question of whether states can lawfully apply their abortion bans to activities connected to legal out-of-state abortions as a matter of constitutional law.

State Litigation and Legislative Developments

A state judge in North Dakota again blocked the state from enforcing its trigger law. The injunction will remain in place while litigation challenging the law under the North Dakota Constitution proceeds. Preliminary injunctions on enforcement issued by state courts are also currently in effect in Iowa, Michigan, Montana, South Carolina, Texas (limited to enforcement of pre-Roe criminal penalties), Utah, West Virginia, and Wyoming.

In North Carolina, the state Senate majority leader said he would support passing a new law that prohibits abortion after 12 weeks post-fertilization with exceptions for rape and incest and to protect the life of the pregnant person, but would oppose a complete ban on abortion. He further signaled that no action on abortion will take place until the 2023 session. The ability of North Carolina state legislators to enact new restrictions will depend on whether the Republicans attain a veto-proof majority in the upcoming elections.


If you have any questions or would like more information on the issues discussed in this Insight, please contact any of the following Morgan Lewis lawyers:

Sharon Perley Masling
Saghi (Sage) Fattahian
Jonathan Zimmerman