Americans United for Life filed a friend-of-the-court brief in State of Texas v. Becerra, which involves the Emergency Medical Treatment and Labor Act (EMTALA) abortion mandate. EMTALA only requires emergency departments to stabilize or transfer patients in critical condition. Nevertheless, the U.S. Department of Health and Human Services (HHS) reinterpreted EMTALA, contending the statute requires medical professionals to perform abortions, including elective abortions, in certain circumstances. The district court agreed with Texas and two pro-life medical organizations that the abortion mandate exceeds the scope of HHS’ authorized power, and permanently blocked it. The case is now before the Fifth Circuit, which has the opportunity to affirm the district court’s ruling and protect women and unborn children from the unlawful abortion mandate. Our brief put forth four arguments in support of affirmance.
Agency Ruling on Abortion Needs Congressional Authorization
Under the major questions doctrine, if an administrative agency seeks to rule on an issue of economic and political significance—such as abortion—then the agency must have clear authorization from Congress. Here, EMTALA says nothing about abortion. In fact, it recognizes protections for unborn children at four separate points in the statute. In issuing the abortion mandate, HHS blatantly disregarded EMTALA’s plain language and intent to protect unborn children.
HHS’ reinterpretation of EMTALA further undermines federal pro-life policy. Following Dobbs v. Jackson Women’s Health Organization, there is no federal right or interest in abortion. Rather, this is a plethora of statutes protecting women, unborn children, families, and medical professionals from the harms of abortion violence. HHS has no authority to subvert federal pro-life policy.
HHS Is Not a Medical Board
Modern medicine considers the unborn child as a second patient. It is only in the context of abortion that the unborn child is not considered a second patient. By devising protections for elective abortion, the abortion mandate contravenes the medical understanding of the unborn child as a second patient.
The abortion mandate unlawfully usurps state medical licensing and devises an ambiguous standard of care. States have broad powers to regulate the practice of medicine. The abortion mandate mandates doctors perform elective abortions in pro-life states in certain circumstances. This creates an ambiguous standard of care since doctors are acting outside the scope of their state medical license, but there is no federal medical licensing board to oversee health and safety standards. Moreover, HHS has no authority to become the nation’s ex officio medical board on abortion.
HHS Abortion Mandate is Unlawful
Ultimately, HHS’ EMTALA abortion mandate is unlawful and another instance of the Biden Administration’s empty abortion rhetoric. Federal policy is overwhelmingly pro-life, protecting women and unborn children from the harms of abortion.
“Administrative agencies must act within the scope of their authorized power,” highlights Carolyn McDonnell, AUL Litigation Counsel. “EMTALA does not discuss abortion. Rather, it protects unborn children throughout the statute. HHS has no authority to rewrite the statute to insert an abortion mandate that contravenes EMTALA’s text and intent. The abortion mandate undermines federal pro-life policy and threatens women, children, families, and medical professionals with abortion violence.”
“Over the years, Congress has enacted numerous federal statutes that protect both women and unborn children from abortion violence,” states Danielle Pimentel, AUL Policy Counsel, “However, instead of affirming these pro-life federal policies, the Biden Administration has attempted to act contrary to such interests by manufacturing abortion policies within EMTALA. This abortion mandate directly contradicts our country’s strong history of safeguarding life and will have devasting consequences for women, their unborn children, and the medical profession. The abortion mandate will create ambiguous standards of care for doctors, subject more women and unborn children to abortion violence, and make HHS the nation’s ex officio medical board despite its lack of authority to set national abortion policy.”