Fifth Circuit: HHS cannot force doctors to perform abortions

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This case underscores that when government bureaucrats try to use intimidation to enforce their own orthodoxy rather than follow the law, Americans have a duty to push back.

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A federal appeals court has ruled that the U.S. Department of Health and Human Services (HHS) cannot require Texas medical professionals to perform abortions which violate state law or their conscience.

On January 2, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the State of Texas, the American Association of Pro-Life Obstetricians and Gynecologists, and the Christian Medical and Dental Associations by leaving in place a permanent injunction implemented by a district court.

The injunction stops HHS from enforcing its guidance on the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), which would have required hospitals and medical officials who accept Medicare funds to perform certain abortions, even if they violated Texas state law.

The issue began after the Supreme Court’s ruling in Dobbs v. Jackson in June 2022, which declared that there is no constitutional right to an abortion. Texas had a trigger law in place that went into effect 30 days after the Dobbs ruling. The law, the Human Life Protection Act (HLPA), prohibits abortion unless the pregnancy “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.” If such a procedure, conducted in an emergency situation, is attempted, the licensed physician must seek to provide the child the best opportunity to survive unless doing so would make the risk greater to the woman.

Following the Dobbs ruling, HHS issued new guidance on the EMTALA, reminding hospitals of their obligations to treat patients facing an emergency. The guidance reads:

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person or draws the exception more narrowly than EMTALAs emergency medical condition definition that state law is preempted.”

Texas and the medical associations filed suit and the district court issued a permanent injunction saying that HHS had exceeded its authority in EMTALA by attempting to preempt state law and issuing new guidance without a public comment period.

The case was appealed to the Fifth Circuit, which agreed with the district court.

A panel of Fifth Circuit judges ruled unanimously that HHS’s guidance violated the Administrative Procedures Act, exceeded the authority of EMTALA in directing medical professionals to take a certain medical action, exceeded the authority of EMTALA in pre-empting state law.

The court also found that Texas’s law is not in conflict with the EMTALA because it permits abortion in the aforementioned circumstances. The Fifth Circuit argued that, as part of EMTALA, medical providers are required to try to stabilize both the mother and the unborn baby, pointing out that Congress added “unborn child” to EMTALA in 1989.

The judges also decided that women cannot refuse to have the baby stabilized, writing that EMTALA does not grant a woman an unqualified right to an abortion.

The ruling says that the court would not expand EMTALA’s authority and require physicians to perform abortions. The panel concluded:

“As previously discussed, EMTALA does not mandate medical treatments, let alone abortion care, nor does it preempt Texas law. The injunction squarely enjoins HHS from enforcing the Guidance and Letter regarding these two issues within the State of Texas and against the plaintiff organizations.”

Alliance Defending Freedom (ADF) represented the complainants. Ryan Banger, senior vice president of Strategic Initiatives at ADF,  issued a statement, saying, “Doctors shouldn’t be forced to break the Hippocratic Oath, and they shouldn’t have to choose between violating their deeply held beliefs or facing stiff financial penalties and being barred from the Medicare program.”

He continued,

“Emergency room physicians can, and do, treat life-threatening conditions such as ectopic pregnancies. But elective abortion is not life-saving care—it ends the life of the unborn child—and the government has no authority to force doctors to perform these dangerous procedures. We are pleased that the courts are allowing emergency rooms to fulfill their primary function—saving lives.”

This is a righteous and constitutional ruling. No law was passed as part of the legal process and no vote was taken in Congress which said that physicians must provide abortions under EMTALA. Yet HHS used “guidance” to try to intimidate hospitals and medical professionals into believing that the law required them to perform elective abortions. HHS had no authority to do so, and now not one but two courts have set them straight.

Unfortunately, today’s government employees increasingly believe they can act according to their own political beliefs, rather than the law. This is why Americans must never blindly adhere to troubling demands and commands from bureaucrats; they should instead take time to ask questions, do their own research, understand the law at issue, and seek legal advice.

In this case, two medical associations did exactly that. They stood up to the regulators when they realized they were being forced to break the law against the best interests of providers and patients and they won — underscoring the universal importance of being discerning and pushing back when government oversteps its bounds.

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