Petition for Writ of Certiorari — Xavier Becerra, Secretary of Health and Human Services, et al., Petitioners v. Texas, et al.

Supreme Court briefApr 1, 2024

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No. XXXX

In the Supreme Court of the United States

XAVIER BECERRA, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL., PETITIONERS

STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

YAIRA DUBIN

Assistant to the Solicitor

General

MICHAEL S. RAAB

MCKAYE L. NEUMEISTER

NICHOLAS S. CROWN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, preempts state law in the

narrow but important circumstance where terminating

a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious

harm to the pregnant woman’s health but the State prohibits an emergency-room physician from providing

that care.

(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are Xavier Becerra, in his official capacity as Secretary of

Health and Human Services; the United States Department of Health and Human Services; the Centers for

Medicare and Medicaid Services (CMS); David R.

Wright, in his official capacity as Director of CMS’s

Quality, Safety & Oversight Group; and Karen L. Tritz,

in her official capacity as Director of CMS’s Survey &

Operations Group.

Respondents (plaintiffs-appellees below) are the

State of Texas; American Association of Pro-Life Obstetricians & Gynecologists; and Christian Medical &

Dental Associations.

RELATED PROCEEDINGS

United States District Court (N.D. Tex.):

Texas v. Becerra, No. 22-cv-185 (Dec. 20, 2022)

United States Court of Appeals (5th Cir.):

Texas v. Becerra, No. 23-10246 (Jan. 2, 2024)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 2

Statutory provisions involved ...................................................... 2

Statement ...................................................................................... 2

Reasons for granting the petition ............................................... 6

Conclusion ..................................................................................... 7

Appendix A — Court of appeals opinion

(Jan. 2, 2024).............................................. 1a

Appendix B — Memorandum opinion and order

(Aug. 23, 2022) ......................................... 30a

Appendix C — District court judgment

(Dec. 20, 2022) ....................................... 107a

Appendix D — District court amended judgment

(Jan. 13, 2023)........................................ 109a

Appendix E — Statutory provision .................................. 112a

Appendix E — HHS guidance

(July 11, 2022) ....................................... 123a

Appendix F — HHS letter (July 11, 2022) ....................... 136a

TABLE OF AUTHORITIES

Cases:

Biden v. Missouri, 595 U.S. 87 (2022) ................................... 2

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022)................................................................ 4

Statutes:

Emergency Medical Treatment and Labor Act,

42 U.S.C. 1395dd ......................................................... 2, 112a

42 U.S.C. 1395dd(b)(1) ............................................ 3, 112a

(III)

Statutes and rule—Continued:

Page

42 U.S.C. 1395dd(b)(2) ............................................ 3, 113a

42 U.S.C. 1395dd(d)(1) ............................................ 3, 116a

42 U.S.C. 1395dd(d)(2) ............................................ 3, 118a

42 U.S.C. 1395dd(e)(1)(A) ....................................... 3, 119a

42 U.S.C. 1395dd(e)(3)(A) ....................................... 3, 120a

42 U.S.C. 1395dd(e)(4) ............................................ 3, 121a

42 U.S.C. 1395dd(f) ................................................. 3, 121a

Medicare Act, 42 U.S.C. 1395 et seq. ..................................... 5

42 U.S.C. 1395cc(a)(1)(I)(i) ............................................... 2

42 U.S.C. 1395cc(b) ........................................................... 3

42 U.S.C. 1395hh ............................................................... 5

Fed. R. Civ. P. 54(b) ................................................................ 5

Miscellaneous:

131 Cong. Rec. (1985):

p. 28,568 .............................................................................. 2

p. 28,569 .............................................................................. 2

In the Supreme Court of the United States

No. XXXX

XAVIER BECERRA, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL., PETITIONERS

STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States,

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a29a) is reported at 89 F.4th 529. The opinion and order

of the district court granting a preliminary injunction

(App., infra, 30a-106a) is reported at 623 F. Supp. 3d

696. The amended order of the district court entering

final judgment (App., infra, 109a-111a) is not published

in the Federal Supplement but is available at 2023 WL

2467217.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

January 2, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix. App., infra, 112a-122a.

STATEMENT

1. Medicare is a federally subsidized health insurance program for the elderly and certain individuals

with disabilities. Participation is voluntary, but hospitals that choose to participate must comply with certain

conditions. See Biden v. Missouri, 595 U.S. 87, 90

(2022) (per curiam). Among other things, hospitals with

emergency departments must abide by the Emergency

Medical Treatment and Labor Act (EMTALA), 42

U.S.C. 1395dd. See 42 U.S.C. 1395cc(a)(1)(I)(i).

EMTALA was enacted in 1986 to address concerns

that hospitals were engaged in “patient dumping” by

discharging or transferring critically ill patients who

lacked insurance rather than providing “the care they

need.” 131 Cong. Rec. 28,569 (1985) (Sen. Kennedy). As

then-Senate Majority Leader Dole explained, “our citizens stake their very lives on the availability and accessibility of emergency hospital care”—yet hospitals, often for financial reasons, were “refus[ing] to initially

treat or stabilize an individual with a true medical emergency.” Ibid. Congress determined that Medicare

should not “do business” with a hospital that “turns its

back on an emergency medical situation.” Id. at 28,568

(Sen. Durenberger).

Consistent with that objective, EMTALA guarantees essential emergency care by establishing a national

minimum standard for hospitals funded by Medicare.

EMTALA provides that when “any individual * * *

comes to a [participating] hospital” with an “emergency

medical condition,” the hospital must offer such treatment “as may be required to stabilize the medical condition.” 42 U.S.C. 1395dd(b)(1). The “individual” must

be informed of risks and benefits and can give “informed consent to refuse such examination and treatment.” 42 U.S.C. 1395dd(b)(2).

An individual has an “emergency medical condition”

if “the absence of immediate medical attention could

reasonably be expected to result in”: (i) “placing the

health of the individual (or, with respect to a pregnant

woman, the health of the woman or her unborn child) in

serious jeopardy”; (ii) “serious impairment to bodily

functions”; or (iii) “serious dysfunction of any bodily organ or part.” 42 U.S.C. 1395dd(e)(1)(A). “[T]o stabilize” means “to provide such medical treatment of the

condition as may be necessary to assure, within reasonable medical probability, that no material deterioration

of the condition is likely to result from or occur during

the transfer of the individual from a facility.” 42 U.S.C.

1395dd(e)(3)(A). And a “transfer” is defined to include

a discharge. 42 U.S.C. 1395dd(e)(4).

Hospitals that violate EMTALA are subject to suits

by injured patients, 42 U.S.C. 1395dd(d)(2); civil penalties, 42 U.S.C. 1395dd(d)(1); and, potentially, the loss of

Medicare funding, 42 U.S.C. 1395cc(b). EMTALA also

includes an express preemption provision specifying

that the statute “do[es] not preempt any State or local

law requirement, except to the extent that the requirement directly conflicts with a requirement” of EMTALA. 42 U.S.C. 1395dd(f).

2. In July 2022, after this Court’s decision in Dobbs

v. Jackson Women’s Health Organization, 597 U.S. 215

(2022), the Department of Health and Human Services

(HHS) issued guidance “to remind hospitals of their existing obligation to comply with EMTALA” and to “restate existing guidance for hospital staff and physicians,” “in light of new state laws prohibiting or restricting access to abortion.” App., infra, 123a, 125a (emphasis omitted); see id. at 123a-135a (the Guidance).

Specifically, the Guidance states that “[i]f 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.” App., infra, 125a (emphasis omitted). The

Guidance notes that “[e]mergency medical conditions

involving pregnant patients may include, but are not

limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as

preeclampsia with severe features.” Id. at 124a (emphasis omitted). It explains that “[s]tabilizing treatment

could include medical and/or surgical interventions

(e.g., methotrexate therapy, dilation and curettage

(D&C), removal of one or both fallopian tubes, antihypertensive therapy, etc.).” Id. at 131a. The Guidance

reiterates that the “determination of an emergency

medical condition” and “[t]he course of stabilizing treatment” are “under the purview of the physician or qualified medical personnel.” Ibid. And the Guidance observes that “[w]hen 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

EMTALA’s emergency medical condition definition—

that state law is preempted” in the emergency situations where EMTALA applies. Id. at 125a (emphasis

omitted). HHS announced the Guidance in a letter to

healthcare providers, which reiterated the Guidance’s

interpretation of EMTALA. Id. at 136a (the Letter).

3. The State of Texas and two organizational plaintiffs brought suit challenging the Guidance and the Letter in the United States District Court for the Northern

District of Texas. As relevant here, the plaintiffs alleged that the Guidance exceeded the Secretary’s statutory authority and had been improperly promulgated

without notice and comment, in violation of the Medicare Act, 42 U.S.C. 1395 et seq.; see 42 U.S.C. 1395hh.

The district court agreed and preliminarily enjoined the

Secretary from enforcing (i) “the Guidance and Letter’s

interpretation that Texas abortion laws are preempted

by EMTALA” and (ii) “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 [the

plaintiff organizations’] members.” App., infra, 105a106a; see id. at 30a-106a. The court subsequently issued

a partial final judgment under Federal Rule of Civil

Procedure 54(b), converting the preliminary injunction

into a permanent injunction. App., infra, 107a-108a,

109a-111a.

4. The court of appeals affirmed. App., infra, 1a29a. On the merits, the court held that the guidance

“exceeds the statutory language” of EMTALA. Id. at

19a. Most broadly, the court held that “EMTALA does

not govern the practice of medicine” or “mandate any

specific type of medical treatment.” Id. at 22a-23a

(emphasis added). And as to pregnancy termination in

particular, the court held that EMTALA does not “mandate[] physicians to provide abortions when that is the

necessary stabilizing treatment for an emergency medical condition,” and therefore that Texas law does not

directly conflict with EMTALA. Id. at 24a, 26a. Rather, the court believed that “the practice of medicine is

to be governed by the states,” id. at 23a, and that doctors always “must comply with state law” notwithstanding EMTALA’s stabilization mandate and preemption

provision, id. at 26a.*

REASONS FOR GRANTING THE PETITION

This case presents the question whether EMTALA

preempts state law in the narrow but important circumstance where terminating a pregnancy is required to

stabilize an emergency medical condition that would

otherwise threaten serious harm to the pregnant

woman’s health, but the State prohibits an emergencyroom physician from providing that care. This Court

has granted certiorari to resolve that question in Moyle

v. United States, cert. granted, No. 23-726, and Idaho v.

United States, cert. granted, No. 23-727 (oral argument

scheduled for Apr. 24, 2024). The Court should therefore hold this petition for a writ of certiorari pending its

decision in Moyle and Idaho and then dispose of the petition as appropriate in light of that decision.

* In reaching the merits, the court of appeals first rejected the

government’s argument that the Guidance was not final agency action. App., infra, 12a-18a. On the merits, the court additionally held

that the Guidance was required to undergo notice and comment because, in the court’s view, the Guidance went “beyond EMTALA.” Id. at 26a-28a. The court further concluded that the injunction was not overbroad. Id. at 29a.

CONCLUSION

This Court should hold the petition for a writ of certiorari pending the disposition of Moyle v. United

States, cert. granted, No. 23-726, and Idaho v. United

States, cert. granted, No. 23-727 (oral argument scheduled for Apr. 24, 2024), and then dispose of the petition

as appropriate.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

YAIRA DUBIN

Assistant to the Solicitor

General

MICHAEL S. RAAB

MCKAYE L. NEUMEISTER

NICHOLAS S. CROWN

Attorneys

APRIL 2024

APPENDIX

TABLE OF CONTENTS

Page

Appendix A

—

Appendix B

—

Appendix C

—

Appendix D —

Appendix E —

Appendix F —

Appendix G

—

Court of appeals opinion

(Jan. 2, 2024) ............................................ 1a

Memorandum opinion and order

(Aug. 23, 2022) ....................................... 30a

District court judgment

(Dec. 20, 2022) ..................................... 107a

District court amended judgment

(Jan. 13, 2023) ...................................... 109a

Statutory provision................................. 112a

HHS guidance

(July 11, 2022) ...................................... 123a

HHS letter (July 11, 2022) .................... 136a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-10246

STATE OF TEXAS; AMERICAN ASSOCIATION OF

PRO-LIFE OBSTETRICIANS & GYNECOLOGISTS;

CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS,

PLAINTIFFS-APPELLEES

XAVIER BECERRA; UNITED STATES DEPARTMENT

OF HEALTH AND HUMAN SERVICES ; CENTERS FOR

MEDICARE AND MEDICAID SERVICES ; KAREN L.

TRITZ; DAVID R. WRIGHT, DEFENDANTS -APPELLANTS

[Filed:

Jan. 2, 2024]

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:22-CV-185

Before SOUTHWICK , ENGELHARDT ,

Circuit Judges.

and WILSON,

KURT D. ENGELHARDT, Circuit Judge:

The Emergency Medical Treatment and Active Labor Act of 1986 (“EMTALA”), 42 U.S.C. § 1395dd, requires hospitals with emergency departments that receive Medicare reimbursement to provide a medical

screening and, if an emergency medical condition exists,

necessary stabilizing treatment or an appropriate transfer irrespective of the individual’s ability to pay. EM(1a)

TALA was enacted to combat “patient dumping,” the

practice of some hospitals turning away or transferring

indigent patients without evaluation or treatment.

The State of Texas, along with two medical associations with members located in Texas (“Texas plaintiffs”), sued the Department of Health and Human Services (“HHS”), HHS Secretary Xavier Becerra, the

Centers for Medicare and Medicaid Services (“CMS”),

the Director of the Survey and Operations Group for

CMS, and the Director of the Quality Safety and Oversight Group for CMS (collectively “HHS”), challenging

HHS’s guidance on EMTALA’s requirement that physicians must provide an abortion when that care is the necessary stabilizing treatment for an emergency medical

condition. The Texas plaintiffs alleged that the guidance mandates providers to perform elective abortions

in excess of HHS’s authority and contrary to state law

and sought to enjoin its enforcement. The district court

enjoined the guidance’s interpretation of EMTALA

within Texas or against any member of a plaintiff organization. HHS appealed. For the following reasons,

we AFFIRM.

In 1986, Congress enacted EMTALA to ensure public access to emergency services regardless of a patient’s

ability to pay. 42 U.S.C. § 1395dd(a). EMTALA applies to every hospital that has an emergency department and participates in Medicare. Id. §§ 1395dd(a),

(e)(2), 1395cc(a)(1)(I); see also 42 C.F.R. § 489.24(b)(4).

To receive federal funding, hospitals must agree to comply with EMTALA. 42 U.S.C. § 1395cc(a)(1)(I)(i). If

a hospital “fails to comply substantially” with Medicare’s conditions of participation, CMS—the component

of HHS that administers Medicare—may seek to terminate that hospital’s participation in the Medicare

program. Id. § 1395cc(b)(2)(A); see also 42 U.S.C.

§ 1395dd(d)(1).

There are three stages to EMTALA: (1) screening;

(2) stabilizing; and (3) transfer. When an individual

presents to a Medicare-participating emergency department and requests examination or treatment, the hospital must provide an appropriate medical screening examination “to determine whether or not an emergency

medical condition” exists. 42 U.S.C. § 1395dd(a). An

“emergency medical condition” means “a medical condition manifesting itself by acute symptoms of sufficient

severity (including severe pain) such that the absence of

immediate medical attention could reasonably be expected to result in” the following:

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman

or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

Id. § 1395dd(e)(1)(A). In the case of a pregnant woman

who is having contractions, an “emergency medical condition” includes:

(i) that there is inadequate time to effect a safe

transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or

safety of the woman or the unborn child.

Id. § 1395dd(e)(1)(B).

If the hospital determines that a patient has an

“emergency medical condition,” the hospital must offer

patients “[n]ecessary stabilizing treatment[s]” or a

“transfer of the individual to another medical facility.”

Id. § 1395dd(b); see also 42 C.F.R. § 489.24(d)-(e). The

term “to stabilize” means “to provide such medical

treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result

from or occur during the transfer of the individual from

a facility, or, with respect to an emergency medical condition [of a pregnant woman who is having contractions],

to deliver (including the placenta).”

42 U.S.C.

§ 1395dd(e)(3)(A); see also 42 U.S.C. § 1395dd(e)(3)(B).

A hospital is deemed to meet the “[n]ecessary stabilizing

treatment” requirements if the hospital offers and informs of examination and treatment but the individual

refuses to consent to the examination and treatment.

42 U.S.C. § 1395dd(b)(2). The term “transfer” means

to move “an individual outside a hospital’s facilities at

the direction of any person employed by . . . the

hospital.” Id. § 1395dd(e)(4). Transfers occur if the

patient is stabilized. Id. § 1395dd(c)(1). If a patient

has not been stabilized, a transfer may only occur in certain circumstances and if the transfer is “appropriate.

“See id. § 1395dd(c)(1)(A)(i)-(iii), (c)(1)(B), (c)(2). 1

If an individual at a hospital has not been stabilized, a transfer

may only occur in three circumstances. First, a hospital may transfer if the individual, having been informed of the hospital’s obligations to provide medical treatment and the risk of transfer, in writing requests transfer to another medical facility. 42 U.S.C.

§ 1395dd(c)(1)(A)(i). Second, a physician certifies that the medical benefits reasonably expected at another medical facility outweigh risks “to the individual and, in the case of labor, to the un1

EMTALA does not address any specific medical procedures or treatments besides the requirement “to deliver (including the placenta).” Id. § 1395dd(e)(3)(A).

Moreover, EMTALA contains a savings clause that

states its limited preemptive effect: “The provisions of

this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” Id.

§ 1395dd(f ).

On June 24, 2022, the United States Supreme Court

issued its decision in Dobbs v. Jackson Women’s Health

Organization, 142 S. Ct. 2228, 2279 (2022), holding “that

the Constitution does not confer a right to abortion” and

that “the authority to regulate abortion must be returned to the people and their elected representatives.”

born child from effecting the transfer.” Id. § 1395dd(c)(1)(A)(ii).

And, last, if a physician was not physically present at the time of

transfer, a qualified medical person has signed a certification after

the physician consulted with that person, determining that the

medical benefits reasonably expected at another medical facility

outweigh risks to the individual, and that physician subsequently

countersigns the certification. Id. § 1395dd(c)(1)(A)(iii). Transfers under Section 1395dd(c)(1)(A)(i)-(iii) must be “appropriate.”

See id. § 1395dd(c)(1)(B). With respect to a pregnant woman, an “appropriate transfer” is a transfer in which “the transferring hospital

provides the medical treatment within its capacity which minimizes

the risks to the individual’s health and, in the case of a woman in

labor, the health of the unborn child.” Id. § 1395dd(c)(2)(A).

The receiving facility must have available space, qualified personnel to treat the individual, have agreed to accept the transfer, and

have all medical records related to the emergency condition for

which the individual has presented. Id. § 1395dd(c)(2)(B)-(C).

The transfer must be effected through qualified personnel and

transportation equipment. Id. § 1395dd(c)(2)(D).

In the wake of Dobbs, so-called “trigger laws” sprung

into effect, meaning laws that were enacted in anticipation of abortion’s return to state control automatically

went into effect. The Texas Human Life Protection Act

(“HLPA”) is such a law. Dobbs triggered HLPA’s 30-day

clock and the law went into effect on August 25, 2022.

The HLPA prohibits abortions unless the pregnancy

“places the female at risk of death or poses a serious risk

of substantial impairment of a major bodily function.

“TEX. HEALTH & SAFETY CODE § 170A.002(b)(2). In

such circumstances, the person performing, inducing, or

attempting the abortion must be a licensed physician exercising reasonable medical judgment by providing the

best opportunity for the unborn child to survive unless,

in the physician’s reasonable medical judgment, it would

pose a greater risk of the pregnant female’s death or a

serious risk of substantial impairment of a major bodily

function of the pregnant female. Id. § 170.002(b)(1),

(3).2

Two weeks after Dobbs, on July 11, 2022, CMS issued

“Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy

Under the HLPA, “abortion” means “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child

of a woman known to be pregnant.” TEX. HEALTH & SAFETY CODE

§ 245.002(1); see also TEX. HEALTH & SAFETY CODE § 170A.001(1)

(“abortion” is assigned the meaning under Section 245.002). The

term “does not include birth control devices or oral contraceptives.”

TEX. HEALTH & SAFETY CODE § 245.002(1). And “[a]n act is not an

abortion if the act is done with the intent to: (A) save the life or

preserve the health of an unborn child; (B) remove a dead, unborn

child whose death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy.” Id. § 245.002(1)(A)-(C).

Loss” (“the Guidance”) 3 and a supporting letter (“the

Letter”)4 to state healthcare-agency directors, reminding hospitals of their existing and continuing obligations

under EMTALA in light of new state laws prohibiting

or restricting access to abortion. Guidance at 1-2.

The Guidance is at the forefront of this appeal. Most

notably, the Guidance states:

If a physician believes that a pregnant patient pre-

senting 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 EMTALA’s emergency

medical condition definition—that state law is

preempted.

Id. at 1 (emphasis in original). According to the Guidance, “[e]mergency medical conditions involving pregnant patients may include, but are not limited to, ectopic

pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with

severe features.” Id. The Guidance notes that “[t]he

course of treatment necessary to stabilize such emergency medical conditions is also under the purview of

the physician or other qualified medical personnel.”

Ctrs. for Medicare & Medicaid Servs., Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are

Experiencing Pregnancy Loss (QSO-21-22-Hospitals-UPDATED

JULY 2022) (July 11, 2022).

Dep’t of Health & Human Servs., The Secretary of Health &

Human Servs., Letter on Enforcement of EMTALA (July 11, 2022).

Id. at 4. The Guidance’s enforcement provision warns

hospitals of penalties for physicians who refuse to provide “necessary stabilizing care for an individual presenting with an emergency medical condition that requires such stabilizing treatment, or an appropriate

transfer.” Id. at 5. It also informs that “[a]ny state

actions against a physician who provides an abortion in

order to stabilize an emergency medical condition in a

pregnant individual presenting to the hospital would be

preempted by the federal EMTALA statute due to the

direct conflict with the ‘stabilized’ provision of the statute.” Id. Endorsed by HHS Secretary Becerra, the

Letter reenforces the same message. See Letter at 12.

On July 14, 2022, Texas filed a complaint in the

Northern District of Texas challenging the Guidance

pursuant to, inter alia, the Administrative Procedure

Act (“APA”) and Medicare Act. The crux of the complaint is that EMTALA does not authorize the federal

government to compel healthcare providers to perform

abortions, and thus, the Guidance is unlawful and must

be set aside. Two weeks later, on July 28, 2022, Texas

amended the complaint, adding as co-plaintiffs the

American Association of Pro-Life Obstetricians & Gynecologists (“AAPLOG”) and Christian Medical & Dental

Associations (“CMDA”).5

AAPLOG is an organization of 6,000 pro-life physicians, with

300 members in Texas. CMDA is a nonprofit organization of Christian physicians, dentists, and allied healthcare professionals, with

over 12,000 members nationwide and 1,237 members in Texas, of

whom 607 are practicing or retired physicians and 35 are OB/GYNs.

Thereafter, on August 3, 2022, the Texas plaintiffs

moved for a temporary restraining order and a preliminary injunction. After a hearing on the matter, the district court issued an order granting a preliminary injunction and simultaneously denying HHS’s motion to

dismiss, finding the Texas plaintiffs had requisite standing and thus the district court did not lack subject matter jurisdiction. Texas v. Becerra, 623 F. Supp. 3d 696

(N.D. Tex. 2022). As an initial matter, and addressing

the claims raised in the Rule 12(b)(1) motion, the district

court concluded that the Texas plaintiffs had Article III

standing to raise their claims. Id. at 709-19. The district court also determined that the Guidance constituted a final agency action. Id. at 720-24. As determined by the district court, the Guidance is neither subject to further agency review nor a mere intermediate

step in a multi-stage administrative process. Id. at

720-21. Rather, it binds HHS and its staff to a particular legal position. Id. at 721-24. On the merits, the

district court concluded that the Texas plaintiffs were

entitled to preliminary injunctive relief because, applying Chevron, 6 the Guidance exceeds statutory authority. Id. at 724-33. HHS was also required to promulgate the Guidance through notice and comment. Id. at

733-35. Having found a likelihood of success on the

merits, the district court determined that the other preliminary injunction factors were satisfied. Id. at 73538. Tailoring the injunction to the parties, issues, and

Both groups oppose elective abortions on medical, ethical, and religious grounds.

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837 (1984). The district court applied Chevron but noted that, even

if Chevron were not to apply, its “conclusions here would stand on

even firmer ground.” Texas, 623 F. Supp. 3d at 724 n.11.

10a

evidence before it, the district court enjoined HHS from

enforcing the Guidance and Letter within the State of

Texas or against the Texas plaintiffs. Id. at 738-39.

On September 1, 2022, HHS moved to clarify the district court’s injunction. According to HHS, it was unclear whether they could continue to enforce the Guidance’s interpretation of EMTALA in Texas and against

the plaintiffs when an abortion would be permitted under state law. HHS filed its first notice of appeal before the district court ruled on the motion. 7 Determining it had jurisdiction to decide the motion to clarify, the

district court denied HHS’s motion. Texas v. Becerra,

No. 5:22-CV-185-H, 2022 WL 18034483, at *1-3 (N.D.

Tex. Nov. 15, 2022).

On December 20, 2022, the district court entered a

partial final judgment, converting the preliminary injunction into a permanent injunction. The parties then

filed an unopposed motion to correct judgment under

Federal Rule of Civil Procedure 60, noting that the judgment should include the language from the preliminary

injunction in its judgment. The district court entered

an amended judgment, stayed the Texas plaintiffs’ remaining claims pending resolution of any appeal from

this judgment and administratively closed the case.

Texas v. Becerra, No. 5:22-CV-185-H, 2023 WL 2467217,

at *1 (N.D. Tex. Jan. 13, 2023). The pertinent language

from the permanent injunction for the purpose of this

appeal is:

The first notice of appeal was docketed as No. 22-11037.

11a

(1) The defendants may not enforce the Guidance

and 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 and CMDA’s

members.

Id. HHS moved to stay the first notice of appeal,

and later, dismissed that appeal. Texas v. Becerra, No.

22-11037, 2023 WL 2366605 (5th Cir. Jan. 26, 2023).

This appeal of the amended judgment followed.

II.

“We review the trial court’s granting . . . of [a] permanent injunction for abuse of discretion.” Peaches Ent.

Corp. v. Ent. Repertoire Assocs., Inc., 62 F.3d 690, 693

(5th Cir. 1995) (citation omitted). We likewise review

de novo the scope of an injunction. Texas v. Equal

Emp. Opportunity Comm’n, 933 F.3d 433, 450 (5th Cir.

2019) (citation omitted) [hereinafter EEOC]. Determinations on jurisdiction are reviewed de novo. Id. at 441

(footnote omitted).

III.

HHS does not raise standing on appeal. Pertinent

to the question of jurisdiction on appeal, however, is (A.)

whether the Guidance is a final agency action subject to

the court’s review. 8 The remaining issues on appeal

include (B.) whether the Guidance is consistent with

EEOC, 933 F.3d at 440 n.8 (“whether an agency action is final

is a jurisdictional issue, not a merits question” (citation omitted)).

12a

EMTALA, (C.) whether the district court erred in concluding that the Guidance was required to undergo notice and comment under the Medicare Act, and (D.)

whether the injunction is overbroad. Each issue will

be analyzed in turn.

The APA provides for judicial review of a “final

agency action.” 5 U.S.C. § 704. Two conditions must

be met for agency action to be “final.” “First, the action must mark the ‘consummation’ of the agency’s decisionmaking process.” Bennett v. Spear, 520 U.S. 154,

177-78 (1997) (citation omitted). “And second, the action must be one by which ‘rights or obligations have

been determined,’ or from which ‘legal consequences

will flow.’ ” Id. at 178 (citation omitted). The Supreme Court takes a “pragmatic approach,” viewing the

APA finality requirement as “flexible.” EEOC, 933

F.3d at 441 (quoting U.S. Army Corps of Eng’rs v.

Hawkes Co., 578 U.S. 590, 599 (2016); and then quoting

Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011)).

HHS does not raise the first prong of the Bennettinquiry. “Reviewability vel non of the Guidance thus

turns on the second Bennett prong—whether ‘rights or

obligations have been determined’ by it, or whether ‘legal consequences will flow’ from it.” EEOC, 933 F.3d

at 441 (quoting Bennett, 520 U.S. at 178).

Courts have consistently held that “an agency’s guidance documents binding it and its staff to a legal position

produce legal consequences or determine rights and obligations, thus meeting the second prong of Bennett.”

EEOC, 933 F.3d at 441. “Whether an action binds the

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agency is evident ‘if it either appears on its face to be

binding[] or is applied by the agency in a way that indicates it is binding.’ ” Id. (alteration in original) (quoting Texas v. United States, 809 F.3d 134, 171 (5th Cir.

2015)); see also Ciba-Geigy Corp. v. U.S. Env’t Prot.

Agency, 801 F.2d 430, 436 (D.C. Cir. 1986) (holding that

an action is final once the agency makes clear that it “expects regulated entities to alter their primary conduct

to conform to [the agency’s] position”). The governing

case on the matter is Texas v. Equal Employment Opportunity Commission, 933 F.3d 433 (5th Cir. 2019).

EEOC involved the Equal Employment Opportunity

Commission’s (“EEOC”) enforcement guidance that

claimed blanket bans on hiring individuals with criminal

records were violations of Title VII. Id. at 437-38.

The court held that the guidance bound the EEOC to a

specific legal position to such a degree that noncompliance with the guidance naturally risked legal consequences for employers. Id. at 446. EEOC directs

courts to determine whether agency action binds the

agency by looking for (1) mandatory language, (2) actions that restrict the agency’s discretion to adopt a different view of the law, and (3) the creation of safe harbors from legal consequences. Id. at 441-43. In some

cases, “ ‘the mandatory language of a document alone

can be sufficient to render it binding.’ ” Id. at 442

(quoting Gen. Elec. Co. v. Env’t Prot. Agency, 290 F.3d

377, 383 (D.C. Cir. 2002)); see also Iowa League of Cities

v. Env’t Prot. Agency, 711 F.3d 844, 864 (8th Cir. 2013)

(holding that language expressing an agency’s position

that speaks in mandatory terms is “the type of language

we have viewed as binding”).

The district court found the Guidance contains all

three. Texas, 623 F. Supp. 3d at 721-24. The Texas

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plaintiffs point to mandatory language throughout the

Guidance for its binding effect, including the title and

body of the text.

In this case, the mandatory language of the Guidance

renders it binding. The title itself imposes “obligations.” Guidance at 1. The Guidance states that hospitals and physicians “must” provide an abortion as a

stabilizing treatment “irrespective of any state laws or

mandates.” Id. at 1, 4-5. It is a part of a “physician’s

professional and legal duty” to provide such treatment

to a patient who presents under EMTALA. Id. at 1.

The Guidance further states that physicians cannot be

shielded from liability for “erroneously complying with

state laws that prohibit services such as abortion or

transfer of a patient for an abortion when the original

hospital does not have the capacity to provide such services.” Id. at 4. Moreover, the Guidance threatens

fines and loss of federal funding for noncompliance.

Id. at 5. The Letter repeats the same message as the

Guidance. Letter at 1-2. The Letter also warns that

the enforcement of EMTALA is a complaint driven process and directs that violations of EMTALA should be

initiated by a complaint. Id. at 2. The Letter states

that violations of EMTALA may lead to civil penalties,

including a physician’s exclusion from “the Medicare

and State health care programs.” Id. The language

as to how EMTALA will be enforced effectively withdraws the agency’s discretion “to adopt a different view

of the law.” EEOC, 933 F.3d at 442. Private parties

can also rely on the Guidance as a norm or safe harbor

to avoid liability. Guidance at 5-6; see also EEOC, 933

F.3d at 443-44 (“The Guidance is ‘binding as a practical

matter’ because ‘private parties can rely on it as a norm

or safe harbor by which to shape their actions.’ ” (quot-

15a

ing Cohen v. United States, 578 F.3d 1, 9 (D.C. Cir.

2009))); Gen. Elec., 290 F.3d at 383 (“private parties can

rely on it as a norm or safe harbor by which to shape

their actions”).

HHS’s reliance on Luminant Generation Co., L.L.C.

v. U.S. Environmental Protection Agency, 757 F.3d 439

(5th Cir. 2014), for the notion that the Guidance has no

independent legal force, is distinguishable from EEOC.

Luminant involved notice of violations sent by the Environmental Protection Agency (“EPA”) informing the

plaintiff power plant of violations under the Clean Air

Act. Id. at 440. It was the Clean Air Act—not the

EPA’s notice of violations to the plaintiff power plant—

that set forth the plaintiff ’s rights and obligations. Id.

at 442. EEOC distinguished its guidance from the notice of violations in Luminant, holding that “the EPA

notices merely expressed the agency’s opinion about the

legality of the plaintiff ’s conduct; it did not . . . commit the administrative agency to a specific course of action should the plaintiff fail to comply with the agency’s

view.” EEOC, 933 F.3d at 445 (citation and quotation

marks omitted). The key, according to EEOC, is that

the guidance “dictates how EEOC must assess claims of

Title VII disparate-impact liability targeting employers

with felon-hiring policies. The [g]uidance does not

merely comment on a single employer’s practices; it tells

EEOC staff and all employers what sort of policy is unlawful.” Id.

HHS claims that the Guidance does not dictate how

providers exercise their professional judgment regarding the proper stabilizing care, and it does not dictate

any particular result. “But as we have explained,

whether the agency action binds the agency indicates

16a

whether legal consequences flow from that action.” Id.

The Guidance is rife with language binding HHS. It

instructs hospitals and physicians to provide abortions

in certain cases irrespective of state law with clear legal

consequences should a physician or hospital violate.

Guidance at 4-5. The Letter repeats the same message. Letter at 1-2. The language effectively withdraws HHS’s discretion “to adopt a different view of the

law.” EEOC, 933 F.3d at 442. The Guidance also establishes safe harbors. Guidance at 5-6. Legal consequences thus flow from the Guidance, and it determines

rights and obligations.

Under the second Bennett prong, agency action is not

final if it “merely restate[s]” a statutory requirement or

“merely reiterate[s] what has already been established.”

Nat’l Pork Prods. Council v. U.S. Env’t Prot. Agency,

635 F.3d 738, 756 (5th Cir. 2011) (citations omitted). To

constitute a final agency action, “rights, obligations, or

legal consequences” created by a challenged action

“must be new.” State v. Rettig, 987 F.3d 518, 529 (5th

Cir. 2021) (citations omitted).

HHS argues that the Guidance is not “new.” In support, HHS submits two prior guidance documents: (1)

a September 2021 guidance issued by CMS (“CMS guidance”);9 and a (2) September 2021 guidance issued by

HHS’s Office for Civil Rights (“OCR”) (“OCR guidCtrs. for Medicare & Medicaid Servs., Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (Sept. 17, 2021) (Revised Oct. 3, 2022),

available at https://www.cms.gov/files/document/qso-21-22-hospitalrevised.pdf.

17a

ance”). 10 These documents hardly qualify the Guidance in this case as “not new.” First, the September

2021 guidance by CMS does not mention abortion.

This document directs hospitals to provide stabilizing

treatment for persons who present to the emergency department, including pregnant women. CMS guidance

at 1. So does EMTALA. See 42 U.S.C. § 1395dd(a),

(e)(1)(A). And while the September 2021 CMS guidance repeats similar language as the Guidance in this

case, it does not impose any obligations like the Guidance in this case does post-Dobbs. The September

2021 CMS guidance falls under National Pork Producers’ definition of an agency action that does not make a

“substantive change” because it “merely restate[s]”

EMTALA’s prohibition on denying an emergency medical examination to determine whether an emergency

medical condition exists for pregnant women. Nat’l

Pork Prods., 635 F.3d at 756; compare September 2021

CMS guidance at 1, with 42 U.S.C. § 1395dd(a), (e)(1).

Second, the September 2021 OCR guidance discusses

the nondiscrimination protections under the Church

Amendments, 42 U.S.C. § 300a-7. OCR guidance at 1.

The Church Amendments protect health care personnel

from discrimination related to their employment or staff

privileges if they refuse to perform or assist in the lawful performance of an abortion. Id. The Church

Amendments define “lawful” abortions as those that are

lawful under federal law. Id. at 2. By citing Planned

Parenthood of Southeastern Pennsylvania v. Casey,

U.S. Dep’t of Health & Human Servs., Guidance on Nondiscrimination Protections under the Church Amendments for

Health Care Personnel (Sept. 17, 2021), available at https://www.

hhs.gov/sites/default/files/church-guidance.pdf.

18a

505 U.S. 833, 879 (1992), the OCR guidance relies on law

that has since been overruled by the Supreme Court.

See Dobbs, 142 S. Ct. at 2284. Moreover, the OCR guidance’s reference to “[l]awful abortions . . . in order

to stabilize a patient when required under [EMTALA]”

is framed in the pre-Dobbs context. OCR guidance at

The Texas plaintiffs claim that the Guidance is “new”

for good reasons. HHS even admitted before the district court at the hearing on the preliminary injunction

that it “hasn’t issued a [G]uidance document specific like

this one . . . because there wasn’t a need for it.

Everybody understood that this is what was required.”

Tr. of Preliminary Injunction Hearing at 125. At oral

argument, HHS sought to clarify that, while there are

new factual circumstances, the obligations on hospitals

remain the same regarding abortion. Oral Argument

Recording at 2:52-3:19; 13:15-25; 13:49-56. We disagree with HHS. The new ingredient here is Dobbs,

which caused a sea change in the law. Put simply, the

Guidance sets out HHS’s legal position—for the first

time—regarding how EMTALA operates post-Dobbs.

The Guidance is new policy; it does not “merely restate”

EMTALA’s requirements. Legal consequences flow

from the Guidance, and it determines rights and obligations. The Guidance therefore constitutes final agency

action.

The APA requires courts to “hold unlawful and set

aside agency action “ that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right.” 5 U.S.C. § 706(2)(C). The district court applied Chevron, finding that the Guidance exceeds HHS’s

19a

statutory authority and is not a permissible construction

of EMTALA. HHS does not invoke Chevron but claims

that Congress has spoken that EMTALA mandates

abortion care when that care is the “necessary stabilizing treatment.” See Oral Argument Record at 16:25-33.

HHS claims that EMTALA’s “stabilizing treatment”

definition is broad and does not exclude any form of

medical care. In HHS’s view, EMTALA mandates whatever a medical provider concludes is medically necessary

to stabilize whatever condition is present. Various traditional rules of interpretation, in Texas’s view, do not

support HHS’s argument. The question here is whether, pursuant to HHS’s Guidance on EMTALA, a physician must provide an abortion when that care is the necessary stabilizing treatment for an emergency medical

condition. Employing the traditional tools of statutory

interpretation, we hold that HHS’s Guidance exceeds

the statutory language. 11

Under EMTALA, if an “individual” is determined to

be experiencing an “emergency medical condition,” see

42 U.S.C § 1395dd(e)(1), Medicare-participating hospitals must offer “such treatment as may be required to

There is no need to go through Chevron’s two-step framework

when a statute unambiguously forecloses an agency’s position. BP

Am., Inc. v. Fed. Energy Reg. Comm’n, 52 F.4th 204, 217 n.6 (5th

Cir. 2022) (citing Esquivel-Quintana v. Sessions, 581 U.S. 385, 39798 (2017) (“We have no need to resolve whether . . . Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the [agency’s] interpretation.”)); see also

Am. Hosp. Assoc. v. Becerra, 596 U.S. 724, 739 (2022) (applying “traditional tools of statutory interpretation” to HHS’s interpretation).

In such cases, we “follow the statutory command.” BP Am., 52

F.4th at 217 n.6.

20a

stabilize the medical condition.” 42 U.S.C. § 1395dd(b)(1).

A plain reading shows that Congress did not explicitly

address whether physicians must provide abortions

when they believe it is the necessary “stabilizing treatment” to assure that “no material deterioration of the

condition is likely to result” of an individual’s emergency

medical condition. Id. § 1395dd(b)(1), (e)(3)(A). The

Supreme Court likewise has not further defined “stabilizing treatment” or “medical treatment” under

EMTALA. Neither party claims that EMTALA expressly discusses abortion as a “stabilizing treatment.”

It simply is silent regarding “abortion.” The district

court concluded the same. Silence does not connote

ambiguity, however. “[L]egal interpretation [is] more

than just a linguistic exercise”—it includes the use of

canons. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS

xxvii (2012).

Considering the statute as a whole, the Medicare Act

states that “[n]othing in this subchapter shall be construed to authorize any Federal officer or employee to

exercise any supervision or control over the practice of

medicine or the manner in which medical services are

provided.” 42 U.S.C. § 1395; see also Scalia & Garner,

supra, at 167-69 (“The text must be construed as a

whole.”). Section 1395 underscores the “congressional

policy against the involvement of federal personnel in

medical treatment decisions. “United States v. Univ.

Hosp., State Univ. of N.Y. at Stony Brook, 729 F.2d 144,

160 (2d Cir. 1984); cf. Marshall on Behalf of Marshall v.

East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 322

(5th Cir. 1998) (collecting cases) (“[A]n EMTALA ‘appropriate medical screening examination’ is not judged

by its proficiency in accurately diagnosing the patient’s

21a

illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms.”). Congress expressly prohibits HHS from “direct[ing] or prohibit[ing] any [particular] kind of treatment or diagnosis” in its administration of Medicare.

Goodman v. Sullivan, 891 F.2d 449, 451 (2d Cir. 1989)

(per curiam). Indeed, the purpose of EMTALA is to

provide emergency care to the uninsured. 42 U.S.C.

§ 1395dd(a); see also Marshall, 134 F.3d at 322 (collecting cases) (“EMTALA . . . was enacted to prevent

‘patient dumping,’ which is the practice of refusing to

treat patients who are unable to pay.”).

EMTALA does not specify stabilizing treatments in

general, except one: delivery of the unborn child and

the placenta. 42 U.S.C. § 1395dd(e)(3)(A). The inclusion of one stabilizing treatment indicates the others are

not mandated. See Texas v. United States, 809 F.3d

134, 182 (5th Cir. 2015) (the expressio unius est exclusio

alterius canon—that is, to include one thing implies the

exclusion of the other—can be used for addressing

“questions of statutory interpretation by agencies”). A

medical provider can nonetheless comply with both EMTALA and state law by offering stabilizing treatment in

accordance with state law. See 42 U.S.C. § 1395dd(a),

(f ); see also Crosby v. Nat’l Foreign Trade Council, 530

U.S. 363, 372-73 (2000) (holding that a state law is not

preempted when compliance with state law does not

stand as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (citation omitted)); SCALIA & GARNER, supra, at 290-94

(discussing the presumption against federal preemption

canon, stating that “[a] federal statute is presumed to

supplement rather than displace state law”). EM-

22a

TALA does not mandate any specific type of medical

treatment, let alone abortion.

The Texas plaintiffs’ argument that medical treatment is historically subject to police power of the States,

not to be superseded unless that was the clear and manifest purpose of Congress, is convincing. Medtronic,

Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citation omitted)

(“[W]e start with the assumption that the historic police

powers of the State were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of Congress.”); see also Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 518 (1992) (courts are to construe

statutes narrowly due to “the presumption against the

pre-emption of state police power regulations”). Congress has not manifested that purpose in EMTALA, or

the Medicare Act for that matter. The opposite is true:

EMTALA does not impose a national standard of care. 12

Harry v. Marchant, 291 F.3d 767, 773 (11th Cir. 2022)

(“EMTALA was not intended to establish guidelines for

patient care.”); Bryan v. Rectors & Visitors of Univ. of

Va., 95 F.3d 349, 351 (4th Cir. 1996) (“Once EMTALA

has met that purpose of ensuring that a hospital undertakes stabilizing treatment for a patient who arrives

with an emergency condition, the patient’s care becomes

the legal responsibility of the hospital and the treating

physicians.”); Eberhardt v. City of Los Angeles, 62 F.3d

Amici American College of Emergency Physicians, et al., claim

that EMTALA installs a minimum standard of care. Brief for Am.

College of Emergency Physicians as Amici Curiae Supporting HHS,

at 14-15. Amici note, however, that “EMTALA properly defers to

the medical judgment of the physician(s) responsible for treating the

patient . . . [and] [t]hat decision-making, in turn, is informed by

established clinical guidelines. . . . EMTALA does not specify

particular treatments.” Id. at 16.

23a

1253, 1258 (9th Cir. 1995). And circuits recognize that

state law, not EMTALA, governs medical malpractice.

See, e.g., Marshall, 134 F.3d at 322-23; Eberhardt, 62

F.3d at 1258; Baber v. Hosp. Corp. of Am., 977 F.2d 872,

879-80 (4th Cir. 1992); Gatewood v. Washington

Healthcare Corp., 933 F.2d 1037, 1039 (D.C. Cir. 1991).

In sum, EMTALA does not govern the practice of

medicine. This is reflected in its purpose, see 42 U.S.C.

§ 1395dd(a), and the prohibition under the Medicare Act

from federal agents interfering with the practice of medicine, see 42 U.S.C. § 1395. See, e.g., Marshall, 134

F.3d at 322 (collecting cases); Bryan, 95 F.3d at 351;

Goodman, 891 F.2d at 451; Stony Brook, 729 F.2d at 160.

While EMTALA directs physicians to stabilize patients

once an emergency medical condition has been diagnosed, see 42 U.S.C. § 1395dd(b)(1), the practice of medicine is to be governed by the states. HHS’s argument

that “any” type of treatment should be provided is outside EMTALA’s purview.

Most notably, the district court considered EMTALA’s preemptive effects. EMTALA states: “The

provisions of this section do not preempt any State or

local law requirement, except to the extent that the requirement directly conflicts with a requirement of this

section.” 42 U.S.C. § 1395dd(f ). Section 1395dd(f ) is

an ordinary conflicts-preemption provision.

See

Hardy v. New York City Health & Hosp. Corp., 164 F.3d

789, 795 (2d Cir. 1999). Under the conflicts-preemption test, a state statute directly conflicts with federal

law where (1) it is impossible for a person to comply with

both the state law and EMTALA, or (2) where the state

law “stands as an obstacle to the accomplishment and

24a

execution of the full purposes and objectives of Congress.” Crosby, 530 U.S. at 372-73 (citation omitted).

The Supreme Court “construe[s] . . . provisions in

light of the presumption against the pre-emption of

state police power regulations.” Cipollone, 505 U.S. at

518.

First, Texas’s HLPA law does not directly conflict

with EMTALA. EMTALA imposes obligations on physicians with respect to both the pregnant woman and her

unborn child.

See 42 U.S.C. § 1395dd(e)(1)(A)(i).

This is a dual requirement. The Texas HLPA provides

for abortion care where there is a life-threatening condition that places the female at risk of death or “substantial impairment of a major bodily function” and the

physician provides the “best opportunity for the unborn

child to survive” unless that would create a greater risk

for the pregnant female’s death or a “serious risk of substantial impairment of a major bodily function of

the pregnant female.” TEX. HEALTH & SAFETY CODE

§ 170A.002(b)(2)-(3). EMTALA’s void is answered by

Texas state law. Second, as previously discussed, the

purpose of EMTALA is to prevent “patient dumping”

for both a pregnant woman and her unborn child. See

42 U.S.C. § 1395dd(a), (e); see also Marshall, 134 F.3d

at 322. Texas’s law does not undermine that purpose;

it does not compel the “rejection of patients.” Harry,

291 F.3d at 774.

Congressional history is telling.

Specifically, Congress amended EMTALA in 1989 by

adding “unborn child” into the statutory definition of

“emergency medical condition” and its discussion of

when transfer is “appropriate.” Compare 42 U.S.C.

§ 1395dd(c), (e), Pub. L. 99-272, 100 Stat. 164, 165-67

(1986), with 42 U.S.C. § 1395dd(c), (e), Pub. L. 101-239,

103 Stat. 2245, 2246-49 (1989). Texas law does not

25a

stand in the way of providing stabilizing treatment for a

pregnant woman or the unborn child. See TEX. HEALTH

& SAFETY CODE § 170A.002(b)(2)-(3).

EMTALA refers to patients as “individuals”

throughout. See generally 42 U.S.C. § 1395dd. Citing the Dictionary Act, see 1 U.S.C. § 8(a), HHS claims

that the word “individual” does not include the “fetus.”

The Dictionary Act defines “individual” as including

“every infant member of the species homo sapiens who

is born alive at any stage of development.” 1 U.S.C.

§ 8(a). Thus, according to HHS, EMTALA expressly

only creates a duty to only individuals with respect to

screening, stabilization, and transfer, and Congress did

not also extend those duties to the “unborn.” HHS’s

reading is misplaced.

Congress specifically chose to define an emergency

medical condition as a medical condition that places “the

health of the individual (or, with respect to a pregnant

woman, the health of the woman or her unborn child) in

serious jeopardy.” 42 U.S.C. § 1395dd(e)(1)(A) (emphasis added). The text speaks for itself: EMTALA

requires hospitals to stabilize both the pregnant woman

and her unborn child. See Scalia & Garner, supra, at

56-58 (Under the supremacy-of-text principle, “words

are given meaning by their context, and context includes

the purpose of the text.”). As previously stated, this is

a dual requirement. Matter of Baby K, 16 F.3d 590,

597 (4th Cir. 1994), does not change this conclusion.

There, the Fourth Circuit held that EMTALA

preempted state law that permitted physicians “to refuse to provide medical treatment that the physician

consider[ed] medically or ethically inappropriate.”

Matter of Baby K, 16 F.3d at 595 (footnote omitted).

26a

Differentiated on the facts alone, Matter of Baby K involved a baby that had already been delivered and required stabilization under EMTALA. Id. at 593-94,

597. The Fourth Circuit determined that the Virginia

state law directly conflicted with EMTALA’s stabilization requirement. Id. at 597. Unlike the discussion

here, there was no balancing between the mother and

the “unborn child.”

Finally, HHS claims that EMTALA mandates the

pregnant woman to resolve the conflict between the pregnant “individual” and “unborn child” through consent or

refusal of treatment. See 42 U.S.C. § 1395dd(b)(2). As

previously discussed, EMTALA leaves the balancing of

stabilization to doctors, who must comply with state law.

Id. § 1395dd(e)(1), (e)(3)(A). We agree with the district

court that EMTALA does not provide an unqualified

right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations.

The question before the court is whether EMTALA,

according to HHS’s Guidance, mandates physicians to

provide abortions when that is the necessary stabilizing

treatment for an emergency medical condition. It does

not. We therefore decline to expand the scope of

EMTALA.

Under the Medicare Act, an agency is required to

conduct notice-and-comment rulemaking when promulgating any “rule, requirement, or other statement of

policy . . . that establishes or changes a substantive

legal standard governing . . . the payment for services” or “the eligibility of individuals, entities, or organ-

27a

izations to . . . receive services or benefits.” 42

U.S.C. § 1395hh(a)(2); see also Azar v. Allina Health

Servs., 139 S. Ct. 1804, 1808 (2019). Unlike the APA—

where statements of policy are not substantive and thus

not subject to notice and comment—statements of policy

that establish or change a legal standard are subject to

notice and comment under the Medicare Act. Azar,

139 S. Ct. at 1811-14; compare 5 U.S.C. § 553(b)(A), with

42 U.S.C. § 1395hh(a)(2). Under the Medicare Act, a

“statement of policy” is defined as a policy that “ ‘let[s]

the public know [the agency’s] current . . . adjudicatory approach.’ ” Azar, 139 S. Ct. at 1810 (quoting

Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir.

1997)).

The Guidance, at a minimum, falls under Azar’s definition of a “statement of policy” because it lets the public

know of HHS’s “adjudicatory approach” concerning the

application of EMTALA with respect to abortion and

state abortion laws. The Texas plaintiffs list out a few

obvious reasons, including the civil monetary penalties

physicians and hospitals face if they do not provide abortions in various circumstances. Guidance at 5. According to the Guidance, “HHS [Office of the Inspector

General] may also exclude physicians from participation

in Medicare and State health care programs. CMS

may also penalize a hospital by terminating its provider

agreement.” Id. The Guidance also provides safe

harbors for physicians, including “as a defense to a state

enforcement action, in a federal suit seeking to enjoin

threatened enforcement,” or under a retaliation provision.

Id.

Plainly then, the Guidance “govern[s]

. . . the eligibility of individuals, entities, or organizations to furnish or receive services or benefits” under

the Medicare Act. 42 U.S.C. § 1395hh(a)(2).

28a

HHS’s argument thus hinges on whether the Guidance “establishes or changes a substantive legal standard”

—i.e., alters EMTALA’s generally applicable mandate

to provide stabilizing treatment for emergency medical

conditions. HHS claims it does not and argues that the

Guidance addresses obligations that EMTALA itself imposes only if two conditions are met: (1) the medical

provider believes that a pregnant patient presenting at

an emergency department is experiencing an emergency medical condition as defined by EMTALA, and (2)

that medical provider concludes that an abortion is the

stabilizing treatment necessary.

As discussed at length infra, the Guidance goes beyond EMTALA by mandating abortion. Thus, because

the Guidance “establishes or changes a substantive legal

standard,” see id., HHS was required to subject the

Guidance to notice and comment.

In the least, HHS seeks to narrow the injunction,

claiming that the language is overbroad. Federal Rule

of Civil Procedure 65(d)(1)(B) and (C) requires every injunction must “state its terms specifically; and . . .

describe in reasonable detail—and not by referring to

the complaint or other document—the act or acts restrained or required.” “ ‘The specificity requirement is

not unwieldy. An injunction must simply be framed so

that those enjoined will know what conduct the court has

prohibited.’ ” EEOC, 933 F.3d at 451 (quoting Meyer v.

Brown & Root Constr. Co., 661 F.2d 369, 373 (5th Cir.

1981)). The relevant language here is:

29a

(1) The defendants may not enforce the Guidance

and 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 and CMDA’s

members.

The injunction is not overbroad. 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. A plain reading of the injunction language also

leaves exceptions under the Texas HLPA. See TEX.

HEALTH & SAFETY CODE § 170A.002(b)(1)-(3). The

district court was correct in tailoring the injunction

based on the parties, issues, and evidence before it.

See Louisiana v. Becerra, 20 F.4th 260, 263-64 (5th Cir.

2021).

VI.

For the foregoing reasons, the injunction is AFFIRMED.

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

No. 5:22-CV-185-H

STATE OF TEXAS, ET AL., PLAINTIFFS

XAVIER BECERRA, SECRETARY OF HEALTH AND

HUMAN SERVICES , ET AL., DEFENDANTS

Filed:

Aug. 23, 2022

MEMORANDUM OPINION AND ORDER

The Supreme Court’s holding in Dobbs that the Constitution confers no right to an abortion caused a sea

change, generating novel questions about the interplay

of federal and state law. This case presents one such

question: Does a 1986 federal law ensuring emergency

medical care for the poor and uninsured, known as EMTALA, require doctors to provide abortions when doing

so would violate state law? Texas law already overlaps

with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal

of an ectopic or miscarried pregnancy. But in Dobbs’s

wake and in an attempt to resolve any potential conflict

with state law, the Department of Health and Human

Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide

31a

abortions regardless of state law. That Guidance goes

well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and

preempts state law only when the two directly conflict.

Since the statute is silent on the question, the Guidance

cannot answer how doctors should weigh risks to both a

mother and her unborn child. Nor can it, in doing so,

create a conflict with state law where one does not exist.

The Guidance was thus unauthorized. In any event,

HHS issued it without the required opportunity for public comment. As a result, the Court will preliminarily

enjoin the Guidance’s enforcement against the plaintiffs.

The Court will first explain how we got here and then

detail why the plaintiffs have standing to challenge the

Guidance. Turning from jurisdiction to the merits, the

Court concludes that the Guidance extends beyond EMTALA’s authorizing text in three ways: it discards the

requirement to consider the welfare of unborn children

when determining how to stabilize a pregnant woman; it

claims to preempt state laws notwithstanding explicit

provisions to the contrary; and it impermissibly interferes with the practice of medicine in violation of the

Medicare Act. Because HHS’s Guidance is a statement of policy that establishes or changes a substantive

legal standard, it likewise was subject to notice-andcomment requirements—requirements unfulfilled here.

In light of those conclusions, the Court enjoins the defendants from enforcing the Guidance and Letter’s interpretation that Texas abortion laws are preempted by

EMTALA. Additionally, 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—

32a

within the State of Texas or against AAPLOG’s members and CMDA’s members.

Background

In Dobbs v. Jackson Women’s Health Organization,

the Supreme Court held “that the Constitution does not

confer a right to abortion” and that “the authority to

regulate abortion must be returned to the people and

their elected representatives.” 142 S. Ct. 2228, 2279

(2022). That decision had two effects that are relevant

here. The first was the enactment, effectiveness, or reanimation of various state laws regulating abortion.

The second was President Biden’s Executive Order

14,076—”Protecting Access to Reproductive Healthcare

Services.” 87 Fed. Reg. 42,053 (July 8, 2022).

Texas’s Regulation of Abortion

When Dobbs issued, scores of state laws sprang into

effect. Some of these laws were enacted in anticipation

of abortion’s return to state control; others predated

Roe and had laid dormant for nearly fifty years. Texas

has laws falling into both categories.

The Human Life Protection Act lies in the first—a socalled “trigger law.” HLPA takes effect on the “30th

day after . . . the issuance of a United States Supreme Court judgment overruling, wholly or partly, Roe

v. Wade, 410 U.S. 113 (1973), as modified by Planned

Parenthood v. Casey, 505 U.S. 833 (1992), thereby allowing the states of the United States to prohibit abortion.”

Act of May 25, 2021, 87th Leg., R.S., ch. 800, 2021 Tex.

Sess. Law Serv. 1887 (H.B. 1280) (to be codified at Tex.

Health & Safety Code Ch. 170A). The judgment in

Dobbs triggered HLPA’s 30-day clock, meaning it goes

into effect on August 25, 2022. Dkt. No. 23 at 13.

33a

When it takes effect, HLPA will prohibit abortion unless:

(1) the person performing, inducing, or attempting

the abortion is a licensed physician;

(2) in the exercise of reasonable medical judgment,

the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused

by, or arising from a pregnancy that places the

female at risk of death or poses a serious risk of

substantial impairment of a major bodily function unless the abortion is performed or induced;

and

(3) the person performs, induces, or attempts the

abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless,

in the reasonable medical judgment, that manner would create:

(A)

a greater risk of the pregnant female’s

death; or

(B)

a serious risk of substantial impairment

of a major bodily function of the pregnant female.

H.B. 1280 § 2 (to be codified at Tex. Health & Safety

Code 170A.002(b)).

For HLPA’s purposes, abortion “means the act of using or prescribing an instrument, a drug, a medicine, or

any other substance, device, or means with the intent to

cause the death of an unborn child of a woman known to

be pregnant.” Tex. Health & Safety Code § 245.002.

34a

But the term “does not include birth control devices or

oral contraceptives.” Id. And “[a]n act is not an abortion if the act is done with the intent to: (A) save the

life or preserve the health of an unborn child; (B) remove

a dead, unborn child whose death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy.”

Id.

Texas’s pre-Roe statutes remain on the books, too.

In Texas, when the Supreme Court overruled Roe, these

laws once again became enforceable. One such law criminalized abortion except when “procured or attempted

by medical advice for the purpose of saving the life of

the mother.” See Tex. Rev. Civ. Stat. arts. 4512.1-.4, .6

(2010) (former Tex. Penal Code arts. 1191-94, 1196

(1925)).

For complicated reasons not relevant here, the enforceability of that statute is unclear. In short, HLPA

reflects a more recent, more specific regulation of abortion and, normally, a more recent enactment governing

the same subject supersedes prior enactments. But

the Texas Supreme Court—the final arbiter of Texas

law—is currently considering whether the pre-Roe statutes are enforceable. In re Paxton, No. 22-0527, Dkt.

No. 1 (Tex. June 29, 2022). A state-court judge had enjoined their enforcement, but the Texas Supreme Court

stayed that injunction. In re Paxton, No. 22-0527, Dkt.

No. 8 (Tex. July 1, 2022). Although far from definitive,

that is good enough for the Court’s purposes: the

Court will treat the pre-Roe statutes as enforceable until the Texas Supreme Court dissolves its stay of the injunction barring their enforcement.

35a

The Administration’s Response

Dobbs’s second effect was federal. Two weeks after

Dobbs, President Biden issued Executive Order 14,076,

requiring the Secretary of the Department of Health

and Human Services (HHS) to “identify[] potential actions . . . to protect and expand access to abortion”

and to “identify[] steps to ensure that . . . pregnant

women . . . receive the full protections for emergency medical care afforded under the law, including by

considering updates to current guidance on obligations

specific to emergency conditions and stabilizing care under the Emergency Medical Treatment and Labor Act,

42 U.S.C. 1395dd.” 87 Fed. Reg. 42,053 (July 8, 2022).

Enacted in 1986, EMTALA prevents hospitals from

discriminating against those without the ability to pay

for necessary emergency care—a phenomenon known

as “patient dumping.” Covered hospitals (those participating in Medicare with a dedicated emergency department, 42 U.S.C. §§ 1395dd(a), (e)(2) & 1395cc(a)(1)(I);

see 42 C.F.R. § 489.24(b)(4)) must either stabilize a patient presenting with an “emergency medical condition”

or transfer her to a hospital with facilities to do so.

§ 1395dd(b)(1). EMTALA defines “emergency medical

condition[s]” as those that manifest themselves “by

acute symptoms of sufficient severity (including severe

pain) such that the absence of immediate medical attention could reasonably be expected to result in”:

(i)

placing the health of the individual (or,

with respect to a pregnant woman, the

health of the woman or her unborn child)

in serious jeopardy,

(ii) serious impairment to bodily functions, or

36a

(iii) serious dysfunction of any bodily organ or

part; or

(B)

with respect to a pregnant woman who is having

contractions—

(i)

that there is inadequate time to effect a

safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the

health or safety of the woman or the unborn child.

§ 1395dd(e)(1).

Violators face multiple sanctions. HHS can seek

monetary penalties against institutions and individuals

who fail to provide stabilizing care. § 1395dd(d)(1); 42

U.S.C. § 1320a-7a(c); see also 42 C.F.R. § 1003.500-20.

Dumped patients and their kin can bring suit against the

hospitals, too. § 1395dd(d)(2). And both facilities and

individual physicians who violate EMTALA can be excluded from participating in Medicare and other federally supported programs. §§ 1395cc(b)(2) & 1320a7(b)(5), (h). Whistleblowers are protected from retaliation when they report violations. § 1395dd(i).

Importantly, the statute contains a savings clause

that notes its limited preemptive effect. Only state

laws directly conflicting with an EMTALA requirement

are preempted: “The provisions of this section do not

preempt any State or local law requirement, except to

the extent that the requirement directly conflicts with a

requirement of this section.” § 1395dd(f ).

Pursuant to the Executive Order, the Centers for

Medicare and Medicaid Services (CMS, a component of

37a

HHS) sent Guidance 1 to state healthcare-agency directors. The same day, HHS Secretary Xavier Becerra

sent a Letter2 to healthcare providers. The Guidance

and Letter direct hospitals and doctors, under EMTALA, to provide abortions under certain circumstances and that they must follow federal, not state, law

when doing so.

The Guidance claims that it “restate[s] existing guidance for hospital staff and physicians regarding their

obligations under [EMTALA], in light of new state laws

prohibiting or restricting access to abortion.” Guidance at 2. It contains a disclaimer that “[t]his memorandum is being issued to remind hospitals of their existing obligation to comply with EMTALA and does not

contain new policy.” Id. at 1. HHS states that the

physician must determine whether an emergency medical condition (EMC) exists. Id.; see § 1395dd(b)(1)

(stating that “the hospital determines that the individual

has an emergency medical condition”). And EMCs “may

include a condition that is likely or certain to become

emergent without stabilizing treatment.” Guidance at 1.

Pregnant women may experience EMCs including, but

not limited to, “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as

Reinforcement of EMTALA Obligations Specific to Patients

Who Are Pregnant or Are Experiencing Pregnancy Loss, Centers

for Medicare & Medicaid Services (July 11, 2022), https://www.cms.

gov/files/document/qso-22-22-hospitals.pdf [hereinafter EMTALA

Guidance or Guidance].

HHS Secretary Letter to Health Care Providers About Emergency Medical Care, Department of Health and Human Services

(July 11, 2022), https://www.hhs.gov/sites/default/files/emergency medical-care-letter-to-health-care-providers.pdf [hereinafter

EMTALA Letter or Letter].

38a

preeclampsia with severe features.” Id. Just as the

determination of whether a patient has an EMC rests

with the physician, so too does the determination as to

what course of treatment is necessary to stabilize the

patient. Id. The Guidance states that “[s]tabilizing

treatment could include medical and/or surgical interventions (e.g., methotrexate therapy, dilation and curettage (D&C), removal of one or both fallopian tubes, antihypertensive therapy, etc.).” Id. at 4.

Critically for present purposes, the Guidance continues that, “[i]f a physician believes that a pregnant woman

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.” Id. at 1 (emphasis added). “When a

state law prohibits abortion and does not include an exception for the life and health of the pregnant person—

or draws the exception more narrowly than EMTALA’s

emergency medical condition definition—that state law

is preempted.” Id. Moreover, “[a] hospital cannot

cite State law or practice as the basis for transfer.” Id.

at 4. And “[f]ear of violating state law through the

transfer of the patient cannot prevent the physician

from effectuating the transfer nor can the physician be

shielded from liability for erroneously complying with

state laws that prohibit services such as abortion or

transfer of a patient for an abortion when the original

hospital does not have the capacity to provide such services.” Id.

Leaning on EMTALA’s preemption provision, the

Guidance states that “[w]hen a direct conflict occurs between EMTALA and a state law, EMTALA must be fol-

39a

lowed.” Id. As a result, individuals can use EMTALA

“as a defense to a state enforcement action, in a federal

suit seeking to enjoin threatened enforcement, or, when

a physician has been disciplined for refusing to transfer

an individual who had not received the stabilizing care

the physician determined was appropriate, under the

statute’s retaliation provision.” Id. at 5. Likewise,

“[a]ny state actions against a physician who provides an

abortion in order to stabilize an emergency medical condition in a pregnant individual presenting to the hospital

would be preempted by the federal EMTALA statute

due to the direct conflict with the ‘stabilized’ provision

of the statute.” Id.

Secretary Becerra’s Letter, for its part, references

the Guidance and restates HHS’s positions on abortion

as a stabilizing treatment under EMTALA. The Letter cites specific conditions that qualify as emergency

medical conditions. Letter at 1 (listing “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe

features”). It likewise cites abortion as a stabilizing

treatment, “irrespective of any state laws or mandates

that apply to specific procedures.” Id. (mentioning

“abortion, removal of one or both fallopian tubes, antihypertensive therapy, methotrexate therapy etc.”).

And the Letter reaffirms HHS’s position that a physician has an obligation to perform an abortion under EMTALA despite any countervailing state abortion laws:

[I]f a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing

an emergency medical condition as defined by

EMTALA, and that abortion is the stabilizing treat-

40a

ment necessary to resolve that condition, the physician must provide that treatment. And when a state

law prohibits abortion and does not include an exception for the life and health of the pregnant person—

or draws the exception more narrowly than

EMTALA’s emergency medical condition definition

—that state law is preempted.

Id. at 1-2.

Again, the Letter states that a violation of the

EMTALA obligations stated by HHS could subject a

hospital to “termination of its Medicare provider agreement and/or the imposition of civil monetary penalties”

and a physician to “[c]ivil monetary penalties” and

“exclusion from the Medicare and State health care

programs.” Id. at 2. And the Letter confirms that

“EMTALA’s preemption of state law could also be enforced by individual physicians in a variety of ways, potentially including as a defense to a state enforcement

action, in a federal suit seeking to enjoin threatened enforcement, or, when a physician has been disciplined for

refusing to transfer an individual who had not received

the stabilizing care the physician determined was appropriate, under the statute’s retaliation provision.” Id.

This Suit

Texas and two organizational plaintiffs filed suit

against various HHS officials seeking to enjoin HHS

from enforcing EMTALA in accordance with the terms

of the directives included in its Guidance and Letter.

Texas claims that the Guidance unlawfully requires

abortions in situations where Texas outlaws them, thus

infringing on Texas’s rights to legislate and enforce its

abortion laws. Dkt. No. 18 ¶ 59. The organizational

41a

plaintiffs are two groups of physicians opposed to elective abortions. The American Association of Pro-Life

Obstetricians and Gynecologists (AAPLOG) is an organization of 6,000 pro-life physicians, 300 of whom live in

Texas. Id. ¶ 3. The Christian Medical and Dental Association (CMDA) is a nonprofit organization of Christian physicians, dentists, and allied healthcare professionals, with over 12,000 members nationwide. Id. ¶ 4.

CMDA has 1,237 members in Texas, of whom 607 are

practicing or retired physicians, and 35 are OB/GYNs.

Id. Both groups oppose elective abortions on medical,

ethical, and religious grounds. Id. at 17, 19-20. In

their view, the Guidance coerces physicians into providing elective abortions in contravention of their constitutional and statutory rights. Id. ¶ 80.

The plaintiffs’ amended complaint alleges that the

Guidance is rife with defects. It exceeds EMTALA.

Id. at 21-24. It should have gone through notice and

comment. Id. at 24-25. It is arbitrary and capricious.

Id. at 25-26. It transgresses the Spending Clause.

Id. at 27. It violates the nondelegation doctrine. Id.

at 27-28. It violates the Tenth Amendment. Id. at 2829. It infringes on the Free Exercise Clause. Id. at

29-30. And it violates the Religious Freedom Restoration Act. Id. To remedy these defects, the plaintiffs

ask the Court to set aside the Guidance, declare the defendants’ actions in promulgating it unlawful, enjoin the

Guidance’s enforcement, and award the plaintiffs their

costs and fees.

Three weeks after filing suit, the plaintiffs moved for

a temporary restraining order and preliminary injunction barring the Guidance’s enforcement. Dkt. No. 22.

They request relief by August 25—the day HLPA takes

42a

effect. Tr. at 144. The defendants appeared, responded, and moved to dismiss the suit. Dkt. Nos. 2627; 32; 38-41. After the plaintiffs replied (Dkt. No. 55),

the Court held an evidentiary hearing on their motion

(Dkt. No. 56). Several amici filed briefs on both sides,

and the Court is grateful for their work.

The Preliminary Injunction Standard

Federal Rule of Civil Procedure 65(a) authorizes federal courts to issue preliminary injunctions. 3 “A preliminary injunction is an extraordinary remedy,” requiring a “clear showing” that the plaintiffs are entitled to

such relief. Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22, 24 (2008). The purpose of a preliminary injunction is to preserve the status quo and prevent irreparable injury until the court renders a decision on the

merits. Canal Auth. of Fla. v. Callaway, 489 F.2d 567,

576 (5th Cir. 1974). “In order to obtain a preliminary

injunction, a movant must demonstrate (1) a substantial

likelihood of success on the merits; (2) a substantial

threat of irreparable harm if the injunction does not issue; (3) that the threatened injury outweighs any harm

that will result if the injunction is granted; and (4) that

the grant of an injunction is in the public interest.”

Moore v. Brown, 868 F.3d 398, 402-03 (5th Cir. 2017)

(citing Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.

2009)). The Court takes each question in turn, but in

the final analysis, “[l]ikelihood of success and irreparable injury to the movant are the most significant factors.” Louisiana v. Becerra, 20 F.4th 260, 262 (5th Cir.

2021) (citing Veasey v. Perry, 769 F.3d 890, 892 (5th Cir.

Since the defendants responded and this order has issued, the

plaintiffs’ motion for a temporary restraining order is moot.

43a

2014)). But, as always, the Court first turns to the

question of its power to hear this case.

Jurisdiction

Federal courts have jurisdiction over cases and controversies only. U.S. Const. art. III, § 2. A plaintiff

suing under the Administrative Procedure Act must

demonstrate both constitutional and prudential standing before the Court can exercise any power. MatchE-Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 567 U.S. 209, 224 (2012). The defendants do

not contest that the plaintiffs are “arguably within the

zone of interests to be protected or regulated by” EMTALA. Id. But even if a plaintiff has standing, only “final

agency action” is subject to challenge under the APA.

5 U.S.C. § 704.

Constitutional Standing

The “irreducible constitutional minimum of standing

contains three elements.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992). “The plaintiff must have (1)

suffered an injury in fact, (2) that is fairly traceable to

the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.”

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting

Lujan, 504 U.S. at 560). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements.”

Id.

(citation omitted).

“And standing is not dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that they

press and for each form of relief that they seek.”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208

(2021). Further, “when considering whether a plaintiff

has Article III standing, a federal court must assume

44a

arguendo the merits of his or her legal claim.” N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781

F.3d 182, 191 (5th Cir. 2015) (quoting Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007)); FEC v.

Cruz, 142 S. Ct. 1638, 1647 (2022) (“For standing purposes, we accept as valid the merits of [plaintiffs’] legal

claims.”).

The first prong of the standing inquiry is injury.

“To establish injury in fact, a plaintiff must show that he

or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’ ” Spokeo,

578 U.S. at 339 (quoting Lujan, 504 U.S. at 560). A

concrete injury is one that must “actually exist”—it

must be “real, and not abstract.” Id. at 340. Meanwhile, the particularity aspect requires that the plaintiff

be affected in a “personal and individual way.” Id. at

339 (quoting Lujan, 504 U.S. at 560 n.1). Additionally,

“under Article III, an injury in law is not an injury in

fact. Only those plaintiffs who have been concretely

harmed by a defendant’s statutory violation may sue

that private defendant over that violation in federal

court.” TransUnion, 141 S. Ct. at 2205. So a plaintiff

who “is merely seeking to ensure a defendant’s ‘compliance with regulatory law’ ” does not have “grounds for

Article III standing” absent some “physical, monetary,

or cognizable intangible harm traditionally recognized

as providing a basis for a lawsuit in American Courts.”

Id. at 2206 (quoting Spokeo, 578 U.S. at 345).

Because states are not normal litigants, the Court analyzes Texas’s alleged injuries separately from AAPLOG and CMDA’s. See Massachusetts v. EPA, 549

U.S. 497, 518 (2007).

45a

Texas’s Sovereign Injury

First, the Court finds that Texas plausibly alleges an

injury to its sovereign interest based on the differences

between the Guidance’s interpretation of EMTALA and

Texas’s laws governing when abortions are permitted.

Although the defendants dispute this, the language of

the Guidance and Texas’s laws are not identical, and the

differences are material. This mismatch creates areas

where the Guidance claims to preempt state law—a type

of sovereign injury.

a. The Guidance construes EMTALA to require physicians to perform abortions in

situations not permitted by Texas law.

The Guidance leaves no doubt that, under its view of

EMTALA, abortions will be required under certain circumstances: “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.” Guidance at 1; Letter at 1.

EMTALA defines an emergency medical condition generally4 as a medical condition that would result in placing the health of an individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. § 1395dd(e)(1)(A).

But the Guidance goes further than the statute to say

that “[a]n emergency medical condition may include a

condition that is likely . . . to become emergent

without stabilizing treatment.” Guidance at 1 (empha“Emergency medical condition” has a more specific definition

for a pregnant woman who is having contractions. § 1395dd(e)(1)(B).

46a

sis added) (citing “emergent hypertensive disorders”), 4

(same), 6 (“emergent ectopic pregnancy”); Letter at 1

(“emergent hypertensive disorders”). So under the

Guidance’s interpretation, an abortion could be necessary if a physician determines it is necessary to stabilize

a condition that is not yet emergent but is likely to become so.

On the other hand, Texas’s Human Life Protection

Act prohibits abortion unless a pregnancy-related

“physical condition” is “life-threatening” and “places the

female at risk of death or poses a serious risk of substantial impairment of a major bodily function.” H.B. 1280

§ 2 (to be codified at Tex. Health & Safety Code

170A.002(b)(2)). 5 Similarly, pre-Roe Texas criminal

laws prohibit abortion except when “procured or attempted by medical advice for the purpose of saving the

life of the mother.” See Tex. Rev. Civ. Stat. arts.

4512.1-.4, .6 (2010) (former Tex. Penal Code arts. 119194, 1196 (1925)). So both Texas civil and criminal laws

prohibit abortion unless there is a threat to the life of

the pregnant woman. And HLPA’s language indicates

that the life-threatening physical condition must be present, rather than likely to be emergent. See H.B. 1280

§ 2 (noting that the abortion prohibition does not apply

if, among other things, the pregnant female “has a lifethreatening physical condition”) (emphasis added).

Texas excludes from the definition of abortion acts done “with

the intent to: (A) save the life or preserve the health of an unborn

child; (B) remove a dead, unborn child whose death was caused by

spontaneous abortion; or (C) remove an ectopic pregnancy.” Tex.

Health & Safety Code § 245.002.

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Juxtaposing the Guidance’s construction of EMTALA

with Texas law shows that the former is materially

broader.

First, the Guidance says abortion may be required

for emergency medical conditions that are likely to become emergent, whereas HLPA requires the condition

to be present. Compare Guidance at 1 (“likely . . . to

become emergent”), with H.B. 1280 § 2 (“has a lifethreatening physical condition”).

Second, the Guidance states that EMTALA may require an abortion when the health of the pregnant woman

is in serious jeopardy. Guidance at 1, 3. Texas law, on

the other hand, limits abortions to when the medical condition is life-threatening, and HLPA goes further to expressly limit the condition to a physical condition. See

H.B. 1280 § 2; Tex. Rev. Civ. Stat. arts. 4512.1-.4, .6

(2010).

Third, the Guidance also indicates that EMTALA

may require an abortion when an emergency medical

condition “could . . . result in a serious impairment

or dysfunction of bodily functions or any bodily organ.”

Guidance at 3, 1 (emphasis added). HLPA, by contrast, requires the life-threatening physical condition to

pose a serious risk of substantial impairment of a major

bodily function. H.B. 1280 § 2. So, in addition to requiring a physical threat to life, HLPA requires both a

greater likelihood and a greater severity than the Guidance’s interpretation of EMTALA does.

As the defendants recognize, the Guidance’s reading

of EMTALA theoretically allows for abortions in cases

prohibited by Texas law. Tr. at 79. Nonetheless, the

defendants assert that “Texas has failed to identify any

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particular respect in which Texas law would prohibit an

abortion that EMTALA would require to be offered.”

Dkt. No. 39 at 24. Texas responds that an incomplete

medication abortion is one such scenario. Dkt. No. 23

at 9, 17-18, 29; Tr. at 26.6 Moreover, AAPLOG provides

testimony from Dr. Donna Harrison that the Guidance

“requires performing essentially an elective abortion

where women present to an emergency room, having

previously initiated medication abortions, but where the

unborn child is still living and may still be preserved.”

Dkt. No. 23-1 at 19. Under those circumstances, she

testifies, “the conditions covered by the Abortion Mandate are broader than life of the mother situations and

include elective abortions where the woman’s life is not

at stake.” Id. at 21. As a result, the Guidance “purports to require AAPLOG’s members to perform, assist

in, or refer for elective abortions in violation of Texas

law, the pro-life laws of other states, and EMTALA itself which requires stabilization of the unborn child.”

Id.

The plaintiffs’ focus on, and concern with, medication

abortions are not unfounded. The Guidance itself cites

an “incomplete medical abortion” as a potential emergency medical condition that may require abortion.

Guidance at 6. Since the Guidance permits a physician

to immediately complete a medical abortion—regardless of whether the unborn child is still alive and before

it presents a threat to the life of the mother—it goes beyond Texas’s law.

Texas also cited mental-health emergencies as another situation where the Guidance would permit abortions, but Texas law

would not. Tr. at 24-26.

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Even if a particular condition does present a threat

to the life of the mother, Texas law requires the treating

physician to “perform[], induce[], or attempt[] the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical

judgment, that manner would create: (A) a greater

risk of the pregnant female’s death; or (B) a serious risk

of substantial impairment of a major bodily function of

the pregnant female.” H.B. 1280 § 2. Thus, even when

an abortion is necessary, Texas law requires procedures

that maximize the chance for the unborn child to live,

unless those procedures would themselves create a

greater risk to the pregnant female. Id.

b. The Guidance interprets EMTALA to

preempt any state law governing abortion

in medical emergencies.

In addition to requiring physicians to perform abortions in situations not permitted by Texas law, the Guidance also provides that any state law conflicting with its

requirements is preempted: “Any state that has a

more restrictive definition of emergency medical condition or that has a definition that directly conflicts with

any definition above is preempted by the EMTALA statute.” Guidance at 5; Letter at 1-2. And the Guidance

makes clear that, in HHS’s view, “[p]hysicians and hospitals have an obligation to follow the EMTALA definitions, even if doing so involves providing medical stabilizing treatment that is not allowed in the state in which

the hospital is located.” Guidance at 5. Even more,

the Guidance states that a “hospital cannot cite State

law or practice as the basis for [a] transfer” and that

“[f]ear of violating state law” that restricts abortion can-

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not prevent the physician from fulfilling his or her

EMTALA obligation to perform abortion. Id. at 4.

The message is clear: Any state law that limits the

manner and circumstances under which abortion may be

performed in medical emergencies is preempted, and

HHS’s view of EMTALA alone controls.

c. The Guidance injures Texas’s sovereign

interests.

States have an interest in “the exercise of sovereign

power over individuals and entities within the relevant

jurisdiction—this involves the power to create and enforce a legal code, both civil and criminal.” Alfred L.

Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458

U.S. 592, 601 (1982); Tex. Off. of Pub. Util. Couns. v.

FCC, 183 F.3d 393, 449 (5th Cir. 1999). “Pursuant to

that interest, states may have standing based on (1) federal assertions of authority to regulate matters they believe they control, (2) federal preemption of state law,

and (3) federal interference with the enforcement of

state law.” Texas v. United States, 809 F.3d 134, 153

(5th Cir. 2015) (cleaned up and citations omitted), aff ’d

by an equally divided court sub nom. United States v.

Texas, 136 S. Ct. 2271, 2272 (2016). These “intrusions

are analogous to pressure to change state law.” Id.; see

also Kentucky v. Biden, 23 F.4th 585, 598-99 (6th Cir.

2022). The Court finds that the three situations injuring sovereign interests as outlined by Texas are presented here. 809 F.3d at 153.

First, the Guidance is a federal agency’s assertion of

authority to regulate matters that the states believed

they controlled. The Supreme Court in Dobbs returned “the authority to regulate abortion” to “the people and their elected representatives.” Dobbs, 142

51a

S. Ct. at 2279. With the federal constitutional bar removed, states like Texas naturally believed that they

could limit abortion to emergency situations as they determined was proper. See Dkt. No. 18 at 8, 12-14.

But the Guidance interprets EMTALA to supersede

Texas law and to permit abortions in contexts beyond

that permitted by Texas. Supra Sections 2.A.i.a, b.

Nothing in the record suggests that EMTALA has ever

been interpreted and applied to supersede state laws

governing the permissibility of abortions in medical

emergencies. This is because, as the defendants concede, Dobbs created a new legal landscape concerning

abortion. Tr. at 120. Assuming that the plaintiffs are

correct that the Guidance is an impermissible expansion

of federal authority into emergency-abortion regulation,

the Court finds that the Guidance works an actual injury

to Texas’s sovereign interests. See Tex. Off. of Pub.

Util. Couns., 183 F.3d at 417-18, 449 (finding Texas had

sovereign standing to challenge an FCC regulation that

prohibited Texas from imposing additional requirements on telecommunications carriers seeking universal

service support).

Second, the Guidance interprets a federal statute to

preempt state law. An agency’s formal position that a

state law is preempted can injure a state’s sovereign interests. See State of Ohio ex rel. Celebrezze v. U.S.

Dep’t of Transp., 766 F.2d 228, 229, 233 (6th Cir. 1985)

(holding that “[t]he effective enforcement of [an] Ohio

statute . . . necessarily is endangered and rendered

uncertain by” a DOT statement of policy that Ohio state

laws are preempted by existing federal regulations); see

also Wyoming ex rel. Crank v. United States, 539 F.3d

1236, 1238-42 (10th Cir. 2008) (holding an ATF letter interpreting a federal statute to preempt Wyoming state

52a

firearms laws worked sufficient injury upon Wyoming to

challenge the letter); Texas v. EEOC, 933 F.3d 433, 43740, 446-49 (5th Cir. 2019) (holding that Texas had standing to challenge EEOC guidance that deemed unlawful

under Title VII Texas state agencies’ across-the-board

bans on hiring individuals with criminal records). Despite EMTALA’s anti-preemption provision that leaves

all matters not directly in conflict with EMTALA to the

states, the Guidance construes EMTALA’s preemptive

effect broadly to preempt state laws governing the manner and circumstances under which abortion may be

performed in medical emergencies.

Supra Section

2.A.i.b; see § 1395dd(f ). Because the Guidance constitutes an agency assertion that federal law preempts

state law, Texas has shown an injury in fact.

Third, the Guidance constitutes federal interference

with the enforcement of state law. “[A] State clearly

has a legitimate interest in the continued enforceability

of its own statutes.” Maine v. Taylor, 477 U.S. 131, 137

(1986); see Berger v. N.C. State Conf. of the NAACP, 142

S. Ct. 2191, 2194 (2022). Because a state alone has the

right to create and enforce its legal code, “only the State

has the kind of ‘direct stake’ ” necessary to satisfy standing “in defending the standards embodied in that code.”

Diamond v. Charles, 476 U.S. 54, 65 (1986) (quoting Sierra Club v. Morton, 405 U.S. 727, 740 (1972)).

Here, the Guidance interferes with Texas’s enforcement of its laws because it encourages its hospitals and

doctors to violate Texas abortion laws under threat of

EMTALA liability. The Guidance makes clear that

state abortion laws cannot provide a basis for transferring a patient. Guidance at 4. And the Guidance interprets EMTALA to preempt state laws governing the

53a

permissibility of abortion in medical emergencies. Supra Section 2.A.i.b. Furthermore, the Guidance threatens to enforce these positions by penalizing hospitals

and physicians that fail to stabilize a patient by providing an abortion when required under EMTALA. Guidance at 5 (describing potential exclusion from Medicare

and other state healthcare programs as well as civil

monetary penalties “on a hospital ($119,942 for hospitals

with over 100 beds, $59,973 for hospitals under 100

beds/per violation) or physician ($119,942/violation)”);