After the SCOTUS decision in Dobbs v Jackson Womens Health Organization, 597 US 215 (June 2022), the court erased a woman’s constitutional right to an abortion that had previously been decided almost 50 years previously in the landmark case of Roe v Wade 410 US 113 (1973), based upon the right to privacy in the Fourteenth Amendment of the US Constitution.

Upon the termination of Roe v Wade, at least fourteen states adopted types of abortion bans. But Texas already had ‘trigger’ abortion bans in place just waiting for Roe to be overturned. Texas laws were codified as follows:

• Tex. Health & Safety Code § 170A.001-002 (the “Trigger Ban”);
• Tex. Health & Safety Code § 171.002(3);
• Tex. Health & Safety Code §171.203-205 (“S.B. 8”); and
• 1925 Tex. Penal Code arts. 1191-96 (the “pre-Roe Ban”).

The case that ended up in the US Supreme Court as Becerra, Sec. HHS v State of Texas, 23-1076, (and later Cox v Texas) started after the Dobbs decision as the Biden administration attempted an end-around the Supreme Court via the federal EMTALA, 42 USC 1395dd:

• July 8, 2022 – President Biden issued an Executive Order titled “Protecting Access to Reproductive Healthcare Services.” Exec. Order No. 14,076, 87 Fed. Reg. 42053 (2022). That Order required Secretary Becerra to submit a report to the President “identifying steps to ensure that all patients—including pregnant women and those experiencing pregnancy loss, such as miscarriages and ectopic pregnancies—receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act [EMTALA], 42 U.S.C. 1395dd.” Id. at 42054. (see Texas v Becerra et al, 5:22-cv-00185, para. 15-35, below)
• July 14, 2022 – United States District Court (N.D. Tex.), Texas v. Becerra, No. 5:22-cv-0185; suit brought by TX AG Paxton against the Biden administration HHS for their attempt to use the Emergency Medical Treatment and Labor Act (EMTALA) in opposition to the Dobbs decision and to supersede the Texas abortion statutes; basically, AG Paxton cited as the basis for their Abortion Mandate that the statute did not authorize—and never authorized—the federal government to fund abortions;
• December 20, 2022 – Judgement of the Northern District of Texas Court – entered a Rule 54(b) final judgment of injunction with respect to Plaintiffs’ Count 2 alleging that the HHS Guidance (Abortion Mandate) exceeded the statutory authority; thus
  • “(1) The defendants may not enforce the Guidance and Letter’s interpretation that Texas
  • abortion laws are preempted by EMTALA; and
  • (2) The defendants may not enforce the Guidance and Letter’s interpretation of
  • EMTALA—both as to when an abortion is required and EMTALA’s effect on state
  • laws governing abortion—within the State of Texas or against AAPLOG’s members
  • and CMDA’s members.”
• Jan. 26, 2023 – Notice of appeal to the 5th circuit by Becerra HHS, 23-10246;

While waiting for the 5th circuit court of appeals to issue a decision, Kate Cox, a local Texas mother, became pregnant with her 3rd child later. The fetus was later diagnosed to have a terminal disease, Trisomy 18. But she was denied abortion services based upon the Texas law. Thus the Center for Reproductive Rights took up her case to the local Texas court:

• Dec. 5, 2023 – Cause No. D-1-GN-23-008611, styled Kate Cox et al., v. State of Texas, et. al., in the 200th District Court of Travis County, Texas, for abortion due to fetus dx of terminal Trisomy18;
• Dec. 8, 2023 – Travis County Court administrative stay ordered against enforcement of anti-abortion laws;
• Dec. 10, 2023 – Texas Attorney General Ken Paxton issued a warning letter to health care providers that they could be prosecuted if providing abortion services to the plaintiff – regardless of the district court order;
• Dec. 11, 2023 – the Supreme Court of Texas, 23-0994, ordered the stay lifted as ‘moot’ (the mother had to quickly go out of state for the procedure since the fetus had been diagnosed with Trisomy 18 and was terminal);

Months later the 5th circuit ruled in favor of the district court injunction, and finally, SCOTUS declined to hear the matter.

• Feb. 26, 2024 – United States Court of Appeals (5th Cir.); Texas v. Becerra, No. 23-10246; judgment and mandate that the district court injunction is affirmed;
• April 1, 2024 – Petition for a Writ of Certiorari to SCOTUS, Becerra v Texas, 23-1076:
  • “QUESTION PRESENTED – Whether the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, preempts state law in the narrow but important circumstance where terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health but the State prohibits an emergency-room physician from providing that care.”
• Oct. 7, 2024 – SCOTUS – cert denied – which leaves the injunction by the Northern Texas district court in force; and the matter is concluded.

However, I would note that the Biden administration has not given up on putting guard rails on the Texas abortion statutes. On Aug. 21, 2024, the HHS filed a Notice (Doc. 116) with the federal trial court (5:22-cv-00185) that it intends to investigate at least two complaints against Texas hospitals for refusal to provide services for removal of an ectopic pregnancies. For authority, it cited the Tex. Health & Safety Code § 245.002 (“[a]n act is not an abortion if the act is done with the intent to … remove an ectopic pregnancy”)).

The editor notes that with the Dobbs decisions throwing the abortion regulation issue back to the states, the litigation will now be endless as the right wing extremists attempt to force the entire female population to submit to their doctrine – one state at a time or though a national abortion ban.

CALL TO ACTION:

• Trump has bragged many times that he was responsible for the overturn of Roe v Wade because of his judicial appointments. Never forget what the Republicans have done. It is obvious they want to return women to the status of chattel ‘property’;
• To all Independents – and especially to all women of voting age – You more than any other group collectively MUST SHOW UP IN RECORD NUMBERS on Election Day and vote against any and all Republicans that have stolen your rights to bodily autonomy that you had for 50 years.
• The battle cry – “Never Forget” and “ROE-VEMBER’ is your chance to make YOUR voices and votes heard to hold the bastards accountable.