In the moments following the Dobbs v. Jackson Women’s Health Organization decision this past summer, a whole host of state laws that had lain dormant since Roe v. Wade (1973) stirred awake. The next several months saw a number of these old legislative documents gain the force of law in their respective states once more. Many organizations—political, medical, and otherwise—felt similarly called to revisit their long-standing policies in the wake of Dobbs. One such organization was the United States Department of Health and Human Services (HHS).

On July 11, 2022, HHS directed the Centers for Medicare and Medicaid Services (CMS) to clarify the guidelines medical professionals were obliged to operate under. Along with this guidance, HHS Secretary Xavier Becerra sent a personal letter to US hospitals explaining his interpretation of how a few key provisions of the 1986 Emergency Medical Treatment and Labor Act (EMTALA) relate to abortion. Among other notes, Becerra’s letter harped that under EMTALA, abortion was still required for the health of the mother in response to certain emergency medical complications, regardless of whether there were newly amended state laws in place banning abortion. It was this directive that became particularly controversial, eventually landing Becerra and others in a district court in Lubbock, Texas.

The State of Texas, the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), and the Christian Medical and Dental Associations (CMDA) sued Becerra. As described in the opinion of the court, the plaintiffs contended that contrary to Becerra’s claims, the letter and guidance exceeded the scope and authority of EMTALA and violated physicians’ constitutional and statutory rights not to perform abortions. For these reasons, the plaintiffs requested that the court grant them injunction against the CMS guidance.

One group that found Becerra’s demands particularly concerning was the Catholic Healthcare Leadership Alliance (CHCLA), comprising The National Catholic Bioethics Center and others with an interest in upholding the dignity of human life in the medical field. An amicus brief cosigned by the CHCLA sets out to highlight the intentional ambiguity of EMTALA’s language regarding abortion, arguing it is intended to protect the interest of unborn children in emergency situations. The brief cites Cleland v. Bronson Health Care Group (1990), which states that EMTALA “applies to any and all patients.” This statute explicitly includes the unborn child. None of the parties at bar disagree that, should life-saving treatment for the mother put the life of her child at risk, said treatment should be given if it cannot be postponed until after the child is born. However, the brief argues that requiring abortion prejudices the rights of Catholic health care providers, who enjoy Congressional protection of religious freedom and conscience in these situations. Demanding abortion as the “only way” to protect the life of the mother in all circumstances blatantly ignores a body of medical evidence providing for the protection the mother’s health without resorting to terminating the life of her child. The brief concludes by noting that the CMS guidance should be recognized for what it is—a “misdirection.”

The court granted the injunction, holding that “(1) the defendants may not enforce the Guidance or 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 or CMDA’s members.”

Therefore, the CMS guidance and Becerra’s letter go beyond the statute of EMTALA by mandating an abortion if the physician believes it will stabilize the mother’s condition. Both documents fail to honor EMTALA’s protections of the unborn child as well as the standing laws regarding abortion in the state of Texas. The guidance and letter create a conflict between EMTALA and the laws of Texas when no such conflict exists. The guidance reads beyond the text of EMTLA to the extent that the guidance says EMTALA requires abortion as a treatment for emergency medical situations where a pregnant woman is involved, irrespective of her unborn child and of the abortion laws of the state under whose jurisdiction the emergency occurs.

Vivian Tork is studying history and biology at Hillsdale College and is an undergraduate fellow at The National Catholic Bioethics Center.

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