Americans United for Life filed a comment in opposition to the Affordable Care Act Section 1557 Proposed Rule on October 3, 2022. Among other provisions, the U.S. Department of Health and Human Services (HHS) seeks to protect abortion as a “pregnancy-related condition” under its definition of “sex discrimination” and insert its manufactured Emergency Medical Treatment and Labor Act (EMTALA) abortion mandate into the Final Rule. As our comment argues, HHS does not have the legal authority to make these changes. 

Following Dobbs v. Jackson Women’s Health Organization, abortion is not protected under federal law. Consequently, HHS has no authority to promulgate rules in support of abortion violence. Dobbs returned the abortion issue to the democratic process, not unelected HHS officials who have no congressional authorization to set a national abortion policy, AUL reminds HHS. 

Federal policy is pro-life policy. Congress has passed legislation to protect infants born-alive after a botched abortion, prohibit gruesome partial-birth abortions, ban the mailing of abortion-inducing drugs, safeguard conscientious objections towards abortion, and restrict the public funding of elective abortion. HHS has no power to undermine Congress’s pro-life policy stance. 

Neither can HHS contend EMTALA mandates pro-life states allow abortion. Congress enacted EMTALA to address patient dumping, so that patients could receive medical screening and care regardless of the patient’s ability to pay for the medical services. The statute requires hospital emergency departments to stabilize or appropriately transfer patients with emergency medical conditions, including “labor”, as the Act’s title reflects. EMTALA says nothing about abortion. In fact, EMTALA considers the unborn child a patient in her own right, and explicitly protects the health of the unborn child. HHS has no authority to act contrary to EMTALA’s text and intent, nor disregard litigation that has blocked HHS from enforcing the EMTALA abortion mandate in State of Texas v. Becerra. 

“The Section 1557 Proposed Rule is part of a long train of anti-life measures the Biden Administration has taken in recent months,” explains Carolyn McDonnell, AUL Litigation Counsel. “Abortion is not protected under federal law, so federal agencies do not have the power to preempt abortion abolition statutes in pro-life states. Rather, federal policy is pro-life, and limits the harms of abortion. HHS has no authority to undermine Congress’ pro-life policy that protects mothers, unborn children, and families from abortion violence.” 

“The Emergency Medical Treatment and Labor Act (EMTALA) was passed to protect low income, uninsured and/or homeless pregnant mothers. For almost 40 years, this law has saved untold numbers of lives,” explains Jesse Southerland, AUL Federal Policy Director. “This Proposed Rule exploits a strictly pro-life law that was passed by an overwhelming bipartisan majority and seeks to politicize these much-needed protections for vulnerable Americans.” 

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