All eyes have been on the abortion cases on the Supreme Court’s docket. Commentary on the recent argument in FDA v. Alliance for Hippocratic Medicine, which involves the FDA’s authorization of remotely prescribed mifepristone, has focused on the likely outcome in that case. But the Supreme Court arguments also previewed the upcoming argument in the Court’s next abortion case, Idaho v. United States. As Rachel Morrison’s recent Bench Memos post explains, the federal Department of Health and Human Services has a poor track record on defending medical conscience rights. And in the Idaho case, HHS is going to have to explain its refusal to recognize those rights for religious hospitals.
To recap, the Idaho case involves post-Dobbs efforts by the Biden administration to impose abortion mandates on health-care providers. Two weeks after Dobbs, President Biden issued an executive order opining on the “devastating implications” of the decision and directing the HHS secretary to find ways “to protect and expand access to abortion care.”
In response, bureaucrats at the department scoured existing law and hit on the Emergency Medical Treatment and Labor Act (EMTALA), a 1986 law that requires emergency rooms to provide basic stabilizing care to patients, regardless of their ability to pay. If you read that description and thought it meant that all hospitals must provide abortions — even when prohibited by state law — congratulations! You have a bright future as a bureaucrat.
HHS issued new EMTALA guidance requiring “abortion” as “stabilizing treatment” in emergency rooms, “irrespective of state laws or mandates that apply to specific procedures.” This was the first time that HHS had used EMTALA to prescribe specific medical procedures of any sort: The underlying statute explicitly leaves to states the “supervision or control over the practice of medicine or the manner in which medical services are provided.” (The statutory definition of “emergency medical condition” also expressly protects the “unborn child.”) But instead of pausing to contemplate whether it really had this power, just two weeks later, the federal government sued Idaho, claiming that Idaho’s own democratically enacted pro-life legislation must yield to HHS’s manufactured interpretation of EMTALA.
The government’s attempt to locate a (previously undiscovered) right to abortion in a nearly 40-year-old statute is a power grab in more ways than one. As Becket’s amicus brief for health-care professionals explains, HHS has been in court nonstop for more than a decade over its attempts to force nuns to provide contraceptives and religious doctors to perform gender transitions. Yet its EMTALA guidance was silent on the issue of religious freedom. HHS knows better. Multiple federal statutes protect religious belief and conscientious objection to abortion. HHS’s silence speaks volumes.
That’s where the FDA argument comes in. Under pressure to explain itself to the Supreme Court, the Biden administration belatedly acknowledged religious-freedom protections. Justice Barrett asked Solicitor General Prelogar about the conscience rights of doctors, including under EMTALA, to refuse to participate in abortion. The solicitor general wisely conceded that federal conscience laws protect individual doctors, claiming that “the federal government has never taken the position that EMTALA would override an individual doctor’s conscience objections.” But her response when it comes to hospitals was far from encouraging: “[EMTALA], of course, imposes obligations on hospitals, and hospitals have all kinds of plans in place to address these types of contingencies. You know, they have staffing plans.”
The implication is clear: Religious doctors are protected, but religious hospitals are not. The government’s merits brief in the EMTALA case puts it this way: “EMTALA’s stabilization obligation is imposed on ‘hospitals,’ not on individual providers.” In other words, religious hospitals must permit abortions to be performed on premises, shipping in willing doctors if necessary.
But what the solicitor general waves off as “contingencies” obscures a serious problem with the government’s attempt to coerce religious hospitals into providing abortions.
Religious hospitals are motivated by religious beliefs. That’s why they care for their communities. And many of them have the laudable goal of caring for both mother and child. For example, Catholic hospitals follow the Ethical and Religious Directives, detailed ethical guidelines that instruct them on how to provide life-affirming care in difficult circumstances. Those hospitals treat complications from miscarriages and infections or bleeding caused by pregnancy loss, regardless of the cause. They help stabilize women in high-risk pregnancies and provide lifesaving care to babies who must be delivered prematurely. Other religious groups likewise have thoughtful guidelines to ensure high standards of life-affirming patient care. And they have cared for their communities for many decades without any federal mandate to perform abortions.
But now, if religious hospitals don’t comply with HHS’s abortion mandate, they risk ruinous penalties, including the ability to serve patients who rely on Medicare and Medicaid. The result would be less patient choice. Religious hospitals provide billions of dollars in free and reduced-cost care to Americans every year. They are a crucial safety net and provider of quality medical care. If the federal government requires them to have someone available to provide an abortion, then the future of these hospitals will be in serious danger.
That’s why Congress has repeatedly protected pro-life medical providers. It was entirely foreseeable that the post-Dobbs reinterpretation of EMTALA would create conflicts between religious freedom and the newly discovered EMTALA abortion mandate. The Religious Freedom Restoration Act and other long-standing federal laws prohibit the federal government from requiring religious institutions, just as well as individuals, from being forced to provide abortions.
HHS has not explained where in EMTALA or other law it derived the idea that religious freedom protects only individuals, nor how that position is reconcilable with the Supreme Court’s repeated recognition of the religious-freedom rights of churches, religious schools, and religious social-service organizations. That’s right as a matter of text, tradition, and simple common sense: If religious people lose their rights the moment they come together to serve their communities, then religious freedom means nothing at all.