Reason Roundup

Courts Split on Whether the Feds Can Overturn These State Abortion Bans

Plus: "Reparations" for the news industry, the disappearance of starter homes, and more...


Can the federal government prevent some state abortion bans from taking effect? Two new court rulings offer mixed opinions on this issue, following the Biden administration's claim that existing federal law prohibits state abortion bans that don't contain exceptions for women's health.

The Department of Justice (DOJ) sued to stop such a ban in Idaho, where a 2020 law set to take effect in August would outlaw abortion except in cases where a doctor had a copy of a police report of rape or could show by a "preponderance of the evidence" that "the abortion was necessary to prevent the death of the pregnant woman." The DOJ said Idaho's ban goes against provisions of the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals receiving Medicare funds (i.e., most U.S. hospitals) to provide stabilizing treatment.

"Idaho's criminal prohibition of all abortions, subject only to the statute's two limited affirmative defenses, directly conflicts with EMTALA and stands as an obstacle to the accomplishment of EMTALA's federal objectives of providing stabilizing care and treatment to anyone who needs it," said the DOJ in a press release.

"Federal law is clear: patients have the right to stabilizing hospital emergency room care no matter where they live," said Department of Health and Human Services (DHS) Secretary Xavier Becerra. "Women should not have to be near death to get care."

In July, HHS issued new guidance stating that EMTALA's provision for stabilizing treatment includes a right to an abortion in some circumstances. "If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person—or draws the exception more narrowly than EMTALA's emergency medical condition definition—that state law is preempted," the agency said.

No existing abortion ban lacks an exception for a mother's life, but some do omit exceptions for women's health. And determining whether something counts as a life-threatening emergency—as opposed to a mere health-threatening emergency—isn't so clear-cut. Many pregnancy complications could become life-threatening while not being necessarily or immediately so. The HHS guidance attempts to provide clarity, stating that regardless of what a state law says, physicians must provide an abortion if one is necessary to address an emergency medical condition (including, but not limited to, ectopic pregnancy or severely high blood pressure).

Texas sued over the HHS directive. Joined by the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA), the state sought to have the HHS "abortion mandate" declared "unlawful, unconstitutional and unenforceable" and for the court to issue a preliminary injunction on its enforcement.

On Wednesday, the U.S. District Court for the Northern District of Texas denied the federal government's motion to dismiss the complaint and granted a preliminary injunction against enforcing the mandate against Texas and AAPLOG or CMDA members. The order stopped short of declaring the mandate unenforceable across the United States.

"Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy," noted U.S. District Judge James Wesley Hendrix in the court's decision (which is heavy on language about "unborn children"):

But in Dobbs's wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law. That 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. As a result, the Court will preliminarily enjoin the Guidance's enforcement against the plaintiffs.

A court in Idaho came to a very different decision related to EMTALA and abortion.

In an August 24 ruling, the U.S. District Court for the District of Idaho granted the Justice Department's request for a preliminary injunction against enforcing the Idaho abortion ban. The injunction took effect immediately and remains "in full force and effect through the date on which judgment is entered in this case."

The court noted the difficult position doctors are put in by the contradictory requirements of Idaho's abortion ban and EMTALA when it comes to pregnant patients facing health emergencies:

If the physician provides the abortion, she faces indictment, arrest, pretrial detention, loss of her medical license, a trial on felony charges, and at least two years in prison. Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health—such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, or even death. And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication. All because Idaho law prohibited the physician from performing the abortion.

Granted, the Idaho statute offers the physician the cold comfort of a narrow
affirmative defense to avoid conviction. But only if she convinces a jury that, in
her good faith medical judgment, performing the abortion was "necessary to
prevent the death of the pregnant woman" can she possibly avoid conviction. Even
then, there is no certainty a jury will acquit. And the physician cannot enjoy the benefit of this affirmative defense if she performed the abortion merely to prevent
serious harm to the patient, rather than to save her life.

Back to the pregnant patient in the emergency department. The doctor
believes her EMTALA obligations require her to offer that abortion right now. But
she also knows that all abortions are banned in Idaho. She thus finds herself on the horns of a dilemma. Which law should she violate?

Fortunately, the drafters of our Constitution had the wisdom to provide a clear answer in Article VI, Paragraph 2 of the Constitution—the Supremacy Clause. At its core, the Supremacy Clause says state law must yield to federal law when it's impossible to comply with both. And that's all this case is about. It's not about the bygone constitutional right to an abortion. This Court is not grappling with that larger, more profound question. Rather, the Court is called upon to address a far more modest issue—whether Idaho's criminal abortion statute conflicts with a small but important corner of federal legislation. It does.

The discordant rulings could force the issue back before the Supreme Court, if appeals courts in each district concur with the lower courts.

Appeals are expected for both cases "and would be heard by separate appeals courts, one based in San Francisco with a reputation for leaning liberal and another in New Orleans known for conservative rulings," notes Reuters.


"Taxing Tech Companies for the Failure of the News Industry Is Just Unfair." Politico's Jack Shafer details what's wrong with Sen. Amy Klobuchar's (D–Minn.) proposed Journalism Competition and Preservation Act. "The legislation isn't actually a tax bill, but if enacted would ding the two top tech-media companies, Google and Facebook, for millions and perhaps billions of dollars a year that would go to the news industry," Shafer points out. But while the idea of taking from tech giants to give to struggling newspapers might appeal to many people, "the Klobuchar bill unjustly punishes the tech giants by making it prop up an industry that has largely failed to address its business problems and has been decaying for decades," he writes:

It would be nice to blame all of the news industry's problems on the tech behemoths, but the undoing of the newspaper industry began well before the web's advent. Newspaper circulation's per capita decline started in the post-WWII era, as did the industry's share of ad spending, thanks to competition from radio and TV. Total advertising revenue peaked in 2005. Some savvy newspaper investors, like Warren Buffett, predicted the industry's coming decline in 1992, a good half-decade before the commercial Internet was a thing. The newspaper audience and ad buyers had already begun migrating to other mediums, like TV and cable….

Although Klobuchar's bill doesn't use the word "reparations," it proceeds as if Google and Facebook injured the news industry by taking something that rightfully belonged to them and should pay annual damages. We can concede that Google makes some money from news headlines and snippets — one independent analyst puts it at $1 billion a year while the news industry's trade group says more like $4.7 billion. But as writer Frederic Filloux has put it, this is how the market works: Better and cheaper products replace what went before. In the Google and Facebook examples, the two companies did two things. First, they almost completely divorced advertising from editorial or entertainment content, making web ads more like billboards than newspapers. Second, they transformed advertising from a wasteful, crapshoot business that ran campaigns in newspapers, on TV and on billboards with almost zero feedback on effectiveness into an efficient, targeted enterprise whose success could be measured instantly. The analogy isn't perfect, but what Google and Facebook did to the ad industry was transformative, akin to what digital cameras did to Kodak and personal computers did to typewriters. The newspaper industry had the resources to create something like Google or Facebook but didn't. The onus for missing what was coming should fall on the news industry, not Google or Facebook. The news industry never had an inherent right to advertising dollars. To imagine they deserve any form of reparations because tech displaced them in the ad marketplace is laughable.

More here.



• Comments that Facebook founder Mark Zuckerberg makes in an interview with podcaster Joe Rogan showcase how the government doesn't need to make direct (and unconstitutional) censorship requests to get tech companies to suppress information. It has threatened social media companies so much (with congressional hearings and investigations, new regulations, antitrust lawsuits, etc.) that their leaders are willing to suppress all sorts of stuff preemptively.

• "Virtually everything since the Supreme Court overturned Roe v. Wade back in June suggests Republicans have a political problem on their hands now that they've obtained their long-sought goal of being able to severely restrict and even ban abortion," writes Aaron Blake at The Washington Post. "And if you look closely, you'll see signs of potential buyer's remorse creeping in."

• The American Civil Liberties Union of Arizona and media outlets are suing over a new Arizona law that makes filming near police a crime.

• A Missouri school district is bringing back paddling students.

• More from Reason on President Joe Biden's student loan debt forgiveness plan:

• "Before I got arrested, I had never really thought about how medical care worked behind bars—and I had no idea how bad it could be and often was," writes Keri Blakinger at CNN.

• Millions in COVID-19 aid went to training veterans. But "only 397 landed jobs," reports The Washington Post.

• A new White House order will change the way federally funded research is published: