Republished with permission from Lucian K. Truscott IV

We’re only three days into this new year, and it’s already you-can’t-make-this-stuff-up time. Yesterday, the Fifth Circuit Court of Appeals, sitting in New Orleans, Louisiana, decided in a case brought by Texas Attorney General Ken Paxton—he, quite familiar with the federal courts in Texas due to his multiple federal criminal indictments—that the federal law requiring hospital emergency rooms to provide life-saving medical care to women whose pregnancies are in extremis does not apply to states with laws forbidding abortion.

Yes, you read that right: Three justices on the Fifth Circuit, one a Bush appointee and two appointed by Donald Trump, have essentially ruled that the Texas law banning abortions has supremacy over a federal law protecting the life of a pregnant mother if an abortion is deemed medically necessary to save her life.

So, Texas 1, pregnant women 0.

The case involves the Emergency Medical Treatment and Labor Act (EMTALA), passed in 1986, requiring all hospitals receiving payments from Medicare to provide a medical screening examination to any patient presenting himself or herself for care regardless of ability to pay, citizenship, or legal status. The EMTALA requires that if the screening examination results in a finding that an emergency medical condition is present, the hospital must provide “stabilizing” care or, in the words of the law, “transfer of the individual to another medical facility.” The EMTALA defines emergency medical condition as any condition, which in the absence of proper medical care, “could reasonably be expected to result in

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.”

In the case of a pregnant woman with contractions, the EMTALA requires the hospital emergency room to “to deliver (including the placenta).”

When the Supreme Court overturned Roe v Wade in 2022, the Department of Health and Human Services sent to all hospitals receiving Medicare funds a letter of guidance on what is required under the EMTALA if a pregnant woman arrives at an emergency room with a life-threatening medical condition requiring an abortion: “When a state law prohibits abortion and does not include an exception for the life of the pregnant person —or draws the exception more narrowly than EMTALA’s emergency medical condition definition —that state law is preempted,” the guidance said.

The Texas state law banning abortion is famously vague when it comes to defining a life-threatening condition for a pregnant woman, or a condition that would cause her ability to reproduce in the future to be damaged. In December, Kate Cox sought an abortion in Texas because she had been diagnosed as carrying a baby with trisomy 18, a condition that commonly results in the fetus dying in utero, in childbirth, or shortly thereafter. The pregnancy can result in the death of the mother, if the condition of the fetus worsens during pregnancy, or the mother’s reproductive health can be affected, including damaging her reproductive organs sufficiently that she can no longer get pregnant or deliver a healthy baby.

Cox sued for the right to abort her fetus and a state court granted her permission under the Texas abortion law. Before Cox could get the abortion that was approved by the local Texas court, Texas Attorney General Ken “Blackheart” Paxton announced that he would prosecute any doctor who provided an abortion to Cox. Paxton also appealed the lower court decision granting Cox an abortion. The Texas Supreme Court quickly overturned the lower court, saying of the Texas ban on abortion in a decision by all nine sitting justices, “These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice.”

Hours before the Texas Supreme Court decision came down, under the advice of her doctors, Cox fled the state to get an abortion. The condition of Cox’s pregnancy was not such that she had had to go to an emergency room in Texas seeking care, but even if her condition had deteriorated to the point that her life was in immediate jeopardy, Texas hospitals would not have given her a life-saving abortion.

In his decision for the Fifth Circuit Court of Appeals, Judge Kurt D. Engelhardt, appointed to the court in 2018 by Donald Trump, wrote, “EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt Texas law.”

The fact that the EMTALA mandates care for mass shooters wounded during their arrests, or gang members who shoot and wound each other in street battles, or drug addicts who show up at emergency rooms in cardiac arrest due to overdoses…well, that didn’t matter to Judge Engelhardt because the reason for their emergency treatment did not involve uteruses.

It is one of the great ironies of the Trumpian era of the law that in the 1960’s, the Fifth Circuit was beacon of liberalism and equal rights under the law. The Fifth Circuit was at the center of a series of federal court decisions upholding and mandating desegregation in the Deep South after Brown v Board of Education and the Civil Rights Act and Voting Rights Act were passed in 1964 and 1965. Judge John Minor Wisdom, after whom the Fifth Circuit courthouse in New Orleans is named, and three other judges on the court were known as “The Fifth Circuit Four,” or simply as “The Four” for their decisions upholding desegregation of public schools and public facilities.

In 1966, the Department of Justice and a group of plaintiffs sued the Jefferson County Board of Education and the boards of education of several other counties in surrounding areas for continuing their policies of segregating schools. Jefferson Parish, as counties in Louisiana are called, was a nearly all-white county immediately to the east of New Orleans, which had (and has) a majority Black population. Jefferson County was so racist that the county Sheriff erected barricades blocking most local streets that led from the west into Jefferson County so that cars from New Orleans could not easily travel into the county.

United States v. Jefferson County Board of Education became a landmark case in the years-long battle to desegregate the south. Judge Wisdom, expressing the opinion of the court’s majority in ordering the desegregation of schools under the jurisdiction of the Fifth Circuit, wrote this:

“The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose.”

Compare that to the flat, nonsensical language used by John Roberts in his Supreme Court decision in a case involving race-based affirmative action programs: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Now, in the opinion of the Handmaid’s court, we have the same theory applied to pregnant women: the way to stop abortions necessary to save pregnant women’s lives is to let them die.

How low the Fifth Circuit Court of Appeals, among many other federal courts, has fallen.