Texas sues Biden over new abortion guidance as conservative groups mull more challenges

The Texas attorney general filed a lawsuit Thursday challenging new abortion guidance the Biden administration released this week — arguing that it violates the rights of doctors not to participate in terminating a pregnancy and steps on the state's right to regulate the procedure within its borders.

The suit against the Biden administration’s top health officials only targets one of the two main actions the federal government has taken in response to the fall of Roe v. Wade — a memo to hospitals and doctors across the country on Monday arguing that federal law requires them to provide abortions in emergency circumstances regardless of whatever bans their state imposes.

In that memo, the government warned health workers and hospitals that refusing to treat patients who need an abortion could put them in legal jeopardy or cost them their participation in Medicare, Medicaid and other federal programs.

In its lawsuit, Texas claims the new guidance “forces hospitals and doctors to commit crimes and risk their licensure under Texas law."

While Texas is the first to sue over the new guidance, the state likely won’t be the last. Conservative advocates tell POLITICO they are mulling their own challenges.

“We’re talking to the pro-life movement about what the response should be to this perversion of the law,” said Roger Severino, who led the Department of Health and Human Services' Office for Civil Rights under the Trump administration and now works with the Ethics and Public Policy Center. “These are radical new policies and they’re opening themselves up to a lawsuit and being blocked in court.”

The Biden administration argues the policies are not new at all.

“This is meant to remind folks of their federal obligations when they take federal funding,” a senior Health and Human Services official told reporters on a Monday call about the guidance. “It in no way mandates a particular conduct.”

Texas tried to rebut this assertion in its lawsuit.

“The [the Emergency Medical Treatment and Labor Act] guidance purports to simply remind hospitals of their existing obligations under federal law," Texas' complaint states. "But it does not: it includes a number of new requirements related to the provision of abortions that do not exist under federal law.”

Much to the frustration of Democratic lawmakers and advocates who have demanded a more aggressive response to the erosion of abortion rights nationwide, the Biden administration has taken a cautious approach — fearful that the same Supreme Court that struck down Roe will block any new measures they try to impose.

Yet even the more narrow policies they have advanced may run into that same buzz saw.

The Texas case will go before Judge James Hendrix, an appointee of President Donald Trump, and if appealed would go to the right-leaning 5th Circuit Court of Appeals and then up to the Supreme Court.

The Biden administration this week also issued guidance to the nation’s retail pharmacies warning them to stop denying patients medications for abortion, birth control, or other drugs they suspect could be used off-label to end a pregnancy — another policy that conservative advocates may challenge.

"Pharmacists are not vending machines. They are medical professionals who routinely screen for contraindications to protect the lives of both mothers and children," Severino said. "The Biden administration is flipping HHS guidance on its head and trying to scare pharmacists into thinking they’re required to dispense abortion-inducing drugs."