Amicus Curiae Brief — Food and Drug Administration, et al., Petitioners v. Alliance for Hippocratic Medicine, et al.
Supreme Court briefFeb 29, 2024
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Nos. 23-235, 23-236
In the Supreme Court of the United States
__________
U.S. FOOD AND DRUG ADMINISTRATION, ET AL.,
Petitioners,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
__________
DANCO LABORATORIES, L.L.C.,
Petitioner,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
__________
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT
__________
BRIEF AMICUS CURIAE OF DEMOCRATS FOR
LIFE OF AMERICA IN SUPPORT OF
RESPONDENTS
__________
ANTHONY R. GORDON
CHRISTIAN MATOZZO
DEMOCRATS FOR LIFE
OF AMERICA
10521 Judicial Drive
Unit 200
Fairfax, VA 22030
(703) 424-6663
RACHEL N. MORRISON
Counsel of Record
ERIC N. KNIFFIN
ETHICS & PUBLIC POLICY
CENTER
1730 M Street, N.W.
Suite 910
Washington, D.C. 20036
(202) 682-1200
rmorrison@eppc.org
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .............................................. i
TABLE OF AUTHORITIES ........................................ ii
INTEREST OF THE AMICUS CURIAE ................... 1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT ................................................................ 2
ARGUMENT ................................................................ 7
The Biden administration is weaponizing federal
law to promote abortion, preempt state abortion
laws, and undermine the promise of Dobbs. .......... 7
A. Turning the U.S. Postal Service into a
delivery service for abortion drugs. ............... 7
B. Turning pharmacies into abortion drug
dispensaries. ................................................... 9
C. Turning hospital emergency rooms into
abortion clinics. ............................................. 12
D. Turning VA hospitals into abortion clinics. 14
E. Turning taxpayer dollars into abortion
funds. ............................................................. 16
F. Turning HIPAA’s privacy protections into a
shield against laws regulating abortion. ..... 22
G. Turning workplace pregnancy
accommodations into an abortion mandate. 25
CONCLUSION .......................................................... 27
ii
TABLE OF AUTHORITIES
Page(s)
Cases
All. for Hippocratic Med. v. U.S. Food & Drug
Admin.,
78 F.4th 210 (5th Cir. 2023) .................................... 9
All. for Hippocratic Med. v. U.S. Food & Drug
Admin., No. 23-10362,
2023 WL 2913725 (5th Cir. Apr. 12, 2023) ............. 8
Danco Labs. v. All. for Hippocratic Med.,
143 S. Ct. 1075 (2023) .............................................. 3
Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022) .......................................... 1, 3, 7
Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius
Inv., LLC,
140 S. Ct. 1649 (2020) ............................................ 15
Moyle v. United States, Nos. 23-726, 23-727
(U.S. pet. granted Jan. 5, 2024) ............................ 14
Oklahoma v. U.S. Dep’t Health & Human Servs.,
No. 23-CV-01052-HE (W.D. Okla.) ....................... 19
Texas v. Becerra,
89 F.4th 529 (5th Cir. 2024) ............................ 12, 13
Texas v. U.S. Dep’t of Health & Hum. Servs.,
No. 23-CV-00022-DC, 2023 WL 4629168 (W.D.
Tex. July 12, 2023). ................................................ 11
Statutes
1 U.S.C. § 8 ................................................................ 24
iii
10 U.S.C. § 1093 ........................................................ 17
18 U.S.C. § 13 ............................................................ 16
18 U.S.C. § 1461 ...................................................... 8, 9
18 U.S.C. § 1462 .......................................................... 8
18 U.S.C. § 1841 ........................................................ 23
18 U.S.C. § 2261 ........................................................ 23
20 U.S.C. § 1688 ........................................................ 10
26 U.S.C. § 9802 ........................................................ 24
29 U.S.C. § 1182 ........................................................ 24
29 U.S.C. § 794 .......................................................... 10
42 U.S.C. § 1395dd .............................................. 12, 13
42 U.S.C. § 1395ss ..................................................... 25
42 U.S.C. § 18023 ...................................................... 10
42 U.S.C. § 18116 ...................................................... 10
42 U.S.C. § 2000ff ...................................................... 25
42 U.S.C. § 2000gg..................................................... 25
42 U.S.C. § 300a-6 ..................................................... 18
42 U.S.C. § 300gg....................................................... 25
5 U.S.C. § 533 ............................................................ 14
Pub. L. No. 102-585, 106 Stat. 4943 (1992).............. 15
Pub. L. No. 104-191, 110 Stat. 1936 (1996).............. 22
Pub. L. No. 110-233, 122 Stat. 881 (2008)................ 24
Pub. L. No. 111-117, 123 Stat. 3034 (2009).............. 20
iv
Pub. L. No. 117-328, 136 Stat. 4908 (2022)
.............................................................. 11, 16, 20, 25
Other Authorities
168 Cong. Rec. S7050 (daily ed. Dec. 8, 2022) ... 25, 26
Application of the Assimilative Crimes Act to
Conduct of Fed. Emps. Authorized by Fed. L.,
46 Op. O.L.C. __ (Aug. 12, 2022) ........................... 16
Application of the Hyde Amend. to the Provision of
Transp. for Women Seeking Abortions,
46 Op. O.L.C. ___ (Sept. 27, 2022) ........................ 17
Brief Amici Curiae for Democrats for Life of
America Five Democratic Legislators From Five
Individual State Legislatures On Behalf Of
Petitioners, Dobbs, 597 U.S. 215 (July 29, 2021) ... 1
CMS, Emergency Medical Treatment & Labor Act
(EMTALA) (last modified Jan. 5, 2024) ................ 13
DFLA, Comment Letter in Opposition to EEOC’s
Proposed “Regulations to Implement the
Pregnant Workers Fairness Act” (RIN 3046AB30) (Oct. 10, 2023) ............................................... 2
DFLA, Comment Letter in Opposition to HHS’s
Proposed Rule “Strengthening Temporary
Assistance for Needy Families (TANF) as a
Safety Net and Work Program” (RIN 0970AC99) (Dec. 1, 2023) ................................................ 2
FDA, REMS Single Shared System for
Mifepristone 200 mg (Jan. 2023) ............................ 9
v
HHS, Marking the 50th Anniversary of Roe:
Biden-Harris Administration Efforts to Protect
Reproductive Health Care (Jan. 19, 2023) ............. 9
HHS, Secretary’s Report, Health Care Under
Attack: An Action Plan to Protect and
Strengthen Reproductive Care (Aug. 2022) ........... 5
Induce, Merriam-Webster.com (last visited Feb.
28, 2024) ................................................................. 23
Intergovernmental Immunity for the Dep’t of
Veterans Affairs & Its Emps. When Providing
Certain Abortion Servs, 46 Op. O.L.C. ___ (Sept.
21, 2022) .................................................................. 15
Jasmine Wright, HHS Secretary Says ‘Everything
Is on the Table’ in Response to Medication
Abortion Ruling, CNN (Apr. 9, 2023, 7:21 PM) .. 2, 3
Laura Huss, Farah Diaz-Tello, Colleen Samari,
Self-Care, Criminalized: August 2022
Preliminary Findings, If When How (Aug. 2022) 24
Letter from Jessica Swafford Marcella, Deputy
Assistant Sec’y for Population Affairs, Office of
Population Affairs, Office of the Assistant Sec’y
for Health, HHS, and Scott Moore, Grants
Mgmt. Officer, Grants and Acquisitions Mgmt.,
Office of the Assistant Sec’y for Health, HHS, to
Yoshie Darnall, Program Director, Tenn. Dep’t
of Health, and Ralph Alvarado, Authorized
Official, Tenn. Dep’t of Health, on Decision not
to Fund Continuation Award (March 20, 2023) ... 20
Letter from Joseph R. Biden, Jr., U.S. Senator, to
Michael Gregg (April 7, 1994) ............................... 16
vi
Letter from Marco Rubio, U.S. Senator, to Kiran
Ahuja, Director, OPM (July 5, 2022) ...................... 17
Letter from Xavier Becerra, Secretary, HHS, and
Chiquita Brooks-LaSure, Administrator, CMS,
HHS to Governors (Aug. 26, 2022)........................ 21
Letter from Xavier Becerra, Secretary, HHS, to
Health Care Providers (July 11, 2022) ................. 13
Memorandum from CMS, HHS, on Reinforcement
of EMTALA Obligations Specific to Patients
Who Are Pregnant or Are Experiencing
Pregnancy Loss (July 11, 2022) (rev. Aug. 25, 2022) . 12
Memorandum from Lloyd Austin, Secretary of
Defense, DOD, to Senior Pentagon Leadership,
Commanders of the Combatant Commands,
Defense Agency and DOD Field Activity
Directors, on Ensuring Access to Reproductive
Health Care (Oct. 20, 2022) ................................... 18
Michael Holzapfel, The Right to Live, the Right to
Choose, and the Unborn Victims of Violence Act,
18 J. Contemp. Health L. & Pol’y 431 (2002). ...... 23
Office for Civil Rights, HHS, Conscience and
Religious Nondiscrimination (last reviewed Jan.
10, 2023) ................................................................. 20
Office of Population Affairs, Office of the Assistant
Sec’y for Health, HHS, Title X Family Planning
Program .................................................................. 19
OPM, Availability of Sick Leave for Travel to
Access Medical Care (June 27, 2022) .................... 17
Press Release, DOJ, Attorney General Merrick B.
Garland Statement on Supreme Court Ruling in
vii
Dobbs v. Jackson Women’s Health Organization
(June 24, 2022) ......................................................... 5
Press Release, HHS, HHS Announces New Grants
to Bolster Family Planner Provider Training
(June 30, 2022) ....................................................... 18
Press Release, HHS, HHS Awards $256.6 Million
to Expand and Restore Access to Equitable and
Affordable Title X Family Planning Servs.
Nationwide (Mar. 30, 2022) ................................... 19
Press Release, HHS, HHS Issues Guidance to the
Nation’s Retail Pharmacies Clarifying Their
Obligations to Ensure Access to Comprehensive
Reproductive Health Care Services (July 13,
2022) ....................................................................... 10
Press Release, HHS, HHS Proposes Measures to
Bolster Patient-Provider Confidentiality Around
Reproductive Health Care (Apr. 12, 2023) ........... 25
Press Release, HHS, HHS Releases Report
Detailing Biden-Harris Administration Efforts
to Protect Reproductive Health Care Since
Dobbs (Jan. 19, 2023) .............................................. 4
Press Release, HHS, HHS Secretary Becerra’s
Statement on Supreme Court Ruling in Dobbs v.
Jackson Women’s Health Organization (June 24,
2022) ..................................................................... 4, 8
White House, FACT SHEET: Biden-Harris
Administration Announces Actions to Protect
Patient Privacy at the Third Meeting of the Task
Force on Reproductive Healthcare Access (Apr.
12, 2023) ................................................................. 20
viii
White House, FACT SHEET: President Biden
Announces Actions in Light of Today’s Supreme
Court Decision on Dobbs v. Jackson Women’s
Health Organization (June 24, 2022) ..................... 7
White House, FACT SHEET: President Biden to
Sign Executive Order Protecting Access to
Reproductive Health Care Services (July 8, 2022)6, 17
White House, FACT SHEET: The Biden-Harris
Administration’s Record on Protecting Access to
Medication Abortion (Apr. 12, 2023) ............. 4, 5, 11
White House, FACT SHEET: White House Task
Force on Reproductive Healthcare Access
Announces New Actions and Marks the 51st
Anniversary of Roe v. Wade (Jan. 22, 2024)......... 19
White House, National Security Council (last
visited Feb. 28, 2024) ............................................. 18
White House, Press Briefing by Press Secretary
Karine Jean-Pierre and NSC Coordinator for
Strategic Communications John Kirby (July 17,
2023) ....................................................................... 18
White House, Remarks by President Biden Before
Meeting with His Task Force on Reproductive
Healthcare Access (Jan. 22, 2024) .......................... 3
White House, Remarks by President Biden on the
Supreme Court’s Decision on Affirmative Action
Remarks (June 29, 2023) ......................................... 3
Regulations
EEOC, Regulations To Implement the Pregnant
Workers Fairness Act,
88 Fed. Reg. 54,714 (Aug. 11, 2023)...................... 26
ix
Exec. Order No. 14,076, Protecting Access to
Reproductive Healthcare Services,
87 Fed. Reg. 42,053 (July 8, 2022) .................. 5, 6, 9
Exec. Order No. 14,079, Securing Access to
Reproductive and Other Healthcare Services,
87 Fed. Reg. 49,505 (Aug. 3, 2022).......................... 6
HHS, Ensuring Access to Equitable, Affordable,
Client-Centered, Quality Family Planning
Services,
86 Fed. Reg. 56,144 (Oct. 7, 2021)......................... 19
HHS, HIPAA Privacy Rule to Support
Reproductive Health Care Privacy,
88 Fed. Reg. 23,506 (Apr. 17, 2023) .......... 22, 23, 24
HHS, Strengthening Temporary Assistance for
Needy Families (TANF) as a Safety Net and
Work Program,
88 Fed. Reg. 67,697 (Oct. 2, 2023)......................... 21
Presidential Memorandum, Further Efforts To
Protect Access to Reproductive Healthcare
Services,
88 Fed. Reg. 4895 (Jan. 26, 2023) ........................... 6
VA, Reproductive Health Services,
87 Fed. Reg. 55,287 (Sept. 9, 2022) ................. 14, 15
1
INTEREST OF THE AMICUS CURIAE1
Democrats for Life of America (DFLA) is the
preeminent national organization for pro-life Democrats. DFLA believes that the protection of human
life at all stages is the foundation of human rights,
authentic freedom, and good government. These beliefs animate DFLA’s opposition to abortion, euthanasia, capital punishment, embryonic stem cell research, poverty, genocide, and all other injustices
that directly and indirectly threaten human life.
DFLA shares the Democratic Party’s historic commitments to supporting women and children,
strengthening families and communities, and striving to ensure equality of opportunity, reduction in
poverty, and an effective social safety net that guarantees that all people have sufficient access to food,
shelter, health care, and life’s other basic necessities.
DFLA supports the Court’s decision in Dobbs v.
Jackson Women’s Health Organization to return the
issue of abortion “to the people and their elected representatives.” 597 U.S. 215, 259 (2022).2 DFLA opposes policies that promote abortion, including when
pushed by a Democratic administration. To this end,
DFLA submitted a public comment opposing a 2023
proposed rule by the Department of Health and Human Services that would remove government funding from pro-life pregnancy centers that support
No counsel for a party authored this brief in whole or in part,
and no person other than amicus and its counsel made any monetary contribution to fund the brief’s preparation or submission.
2 See Brief Amici Curiae for Democrats for Life of America Five
Democratic Legislators From Five Individual State Legislatures
On Behalf Of Petitioners, Dobbs, 597 U.S. 215 (July 29, 2021),
https://perma.cc/25EN-2QLE.
1
2
women and children.3 DFLA also submitted a public
comment in 2023 opposing proposed regulations by
the Equal Employment Opportunity Commission
that would unlawfully turn workplace accommodation protections for pregnant women and mothers,
which DFLA fully supports, into an employer mandate to accommodate abortion.4 DFLA is concerned
about the Food and Drug Administration’s politicized
decision making on mifepristone at issue in this case.
These decisions are part of the Biden administration’s pattern and practice, documented in this brief,
to promote abortion in violation of federal and state
laws, including those that protect unborn human life.
INTRODUCTION AND SUMMARY OF THE
ARGUMENT
“Everything is on the table.”5 Those are the words
of Xavier Becerra, Secretary of the U.S. Department
of Health and Human Services (HHS), which oversees the Food and Drug Administration (FDA), when
CNN asked about the district court’s decision in this
case.6 Secretary Becerra refused to answer whether
ignoring the court’s decision was off the table, explaining that the Biden administration is considering
3 DFLA, Comment Letter in Opposition to HHS’s Proposed Rule
“Strengthening Temporary Assistance for Needy Families
(TANF) as a Safety Net and Work Program” (RIN 0970-AC99)
(Dec. 1, 2023), https://perma.cc/42H3-ZN6T.
4 DFLA, Comment Letter in Opposition to EEOC’s Proposed
“Regulations to Implement the Pregnant Workers Fairness Act”
(RIN 3046-AB30) (Oct. 10, 2023), https://perma.cc/2GGY-UUMV.
5 Jasmine Wright, HHS Secretary Says ‘Everything Is on the Table’ in Response to Medication Abortion Ruling, CNN (Apr. 9,
2023, 7:21 PM), https://perma.cc/GPC9-CVQK.
6 Ibid.
3
“all options.”7 See Danco Labs. v. All. for Hippocratic
Med., 143 S. Ct. 1075, 1076 (2023) (Alito, J., dissenting from grant of application for stays) (“here, the
Government has not dispelled legitimate doubts that
it would even obey an unfavorable order in these
cases”).
Secretary Becerra’s stance is emblematic of the
Biden administration’s pattern and practice to use
every lever of the executive branch to resist the
Court’s decision in Dobbs v. Jackson Women’s Health
Organization, which President Joe Biden called “an
extreme decision”8 by “not a normal Court.”9
In Dobbs, this Court promised that the issue of
abortion is returned “to the people and their elected
representatives.” 597 U.S. 215, 259 (2022). Yet since
the Court’s decision on June 24, 2022, the Biden administration has done everything in its power to frustrate that promise. The administration is seeking to
use federal agencies and unelected government officials to impose a mail-order abortion economy in all
fifty states paid for by the American taxpayer.
The day Dobbs was issued, President Biden
claimed the decision would result in “grave consequences” and announced “actions” his Administration would take in response.10 “[P]reserving access”
7 Ibid.
8 White House, Remarks by President Biden Before Meeting with
His Task Force on Reproductive Healthcare Access (Jan. 22,
2024), https://perma.cc/N9KR-TKX9.
9 White House, Remarks by President Biden on the Supreme
Court’s Decision on Affirmative Action (June 29, 2023),
https://perma.cc/7XU8-3KL4.
10 White House, FACT SHEET: President Biden Announces
4
to abortion drugs was “one of two key priorities” the
President identified.11 He directed Secretary Becerra
to “identify all ways to ensure that mifepristone is as
widely accessible as possible[,] * * * including when
prescribed through telehealth and sent by mail.”12
The same day, Secretary Becerra announced
HHS’s “commitment to ensure every American has
access to * * * medication abortion” and promised,
“we will double down and use every lever we have to
protect access to abortion.”13 FDA decision making,
including modifying the Risk Evaluation and Mitigation Strategy (REMS) for mifepristone, was later
identified by HHS as one of the Department’s “six
core priorities” to “protect and expand access” to
abortion post-Dobbs.14 HHS also identified the FDA’s
removal of the in-person dispensing requirement
from mifepristone’s REMS as an action taken in response to President Biden’s July 8, 2022, executive
order directing the HHS Secretary to “protect and
Actions in Light of Today’s Supreme Court Decision on Dobbs v.
Jackson Women’s Health Organization (June 24, 2022),
https://perma.cc/66T6-BL87.
11 White House, FACT SHEET: The Biden-Harris Administration’s Record on Protecting Access to Medication Abortion (Apr.
12, 2023), https://perma.cc/78TT-3J2G.
12 White House, FACT SHEET: President Biden Announces Actions in Light of Today’s Supreme Court Decision on Dobbs v.
Jackson
Women’s
Health
Org.
(June
24,
2022),
https://perma.cc/66T6-BL87.
13 Press Release, HHS, HHS Secretary Becerra’s Statement on
Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization (June 24, 2022), https://perma.cc/89AZ-RFL4.
14 Press Release, HHS, HHS Releases Report Detailing BidenHarris Administration Efforts to Protect Reproductive Health
Care Since Dobbs (Jan. 19, 2023), https://perma.cc/6CE3-J7DD.
5
expand access to abortion care, including medication
abortion.”15
Attorney General Merrick Garland, the nation’s
chief law enforcement officer and head of the Department of Justice (DOJ), also issued a statement on
Dobbs, declaring, “The Justice Department strongly
disagrees with the Court’s decision.”16 He promised
DOJ will “work tirelessly to protect and advance”
abortion and will “use every tool at our disposal.”17
Without citing any legal authority, Garland claimed
that “States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its
safety and efficacy.”18 Repeating the AG’s assertion,
HHS reported that it is working with DOJ “to help
ensure access to care and preserve FDA’s role in determining what is safe and effective for patients.”19
Rather than wait for Congress to heed his call to
codify Roe v. Wade, President Biden “committed to
doing everything in his power” to “protect access” to
15 White House, FACT SHEET: The Biden-Harris Administra-
tion’s Record on Protecting Access to Medication Abortion (Apr.
12, 2023), https://perma.cc/78TT-3J2G (citing Exec. Order No.
14,076, Protecting Access to Reproductive Healthcare Services,
87 Fed. Reg. 42,053 (July 8, 2022), and HHS, Secretary’s Report,
Health Care Under Attack: An Action Plan to Protect and
Strengthen
Reproductive
Care
(Aug.
2022),
https://perma.cc/WWV5-CSFY).
16 Press Release, DOJ, Attorney General Merrick B. Garland
Statement on Supreme Court Ruling in Dobbs v. Jackson
Women’s
Health
Organization
(June
24,
2022),
https://perma.cc/E6DY-59LK.
17 Ibid.
18 Ibid.
19 HHS, Secretary’s Report Health Care Under Attack: An Action
Plan to Protect and Strengthen Reproductive Care 8 (Aug. 2022),
https://perma.cc/WWV5-CSFY.
6
abortion.20 He issued multiple statements and executive orders denouncing Dobbs and mandating access to abortion, even though there is no federal constitutional right to abortion and no federal statute
contains a mandate to provide abortion.21
At the President’s direction, federal agencies, including HHS, and unelected government officials began reinterpreting federal laws to force states and
private individuals to perform abortions and use taxpayer dollars to pay for abortion. Never-before-found
authority was conveniently discovered in federal law
post-Dobbs that the administration claims allows the
federal government to impose abortion mandates and
preempt state laws protecting unborn human life.
Within this context, DOJ urges the Court in this
case to defer to unnamed “agency experts” and not
“second-guess[] FDA’s expert judgment” on abortion.
Br. for Fed. Pet’rs at 12, 42. The FDA’s judgment,
however, cannot be viewed in a vacuum unattenuated from the Biden administration’s and HHS’s pattern and practice, documented below, to undermine
the promise of Dobbs by promoting abortion in violation of federal and state law.
20 White House, FACT SHEET: President Biden to Sign Execu-
tive Order Protecting Access to Reproductive Health Care Services (July 8, 2022), https://perma.cc/F5ZZ-XGL8.
21 E.g., Exec. Order No. 14,076, Protecting Access to Reproductive
Healthcare Services, 87 Fed. Reg. 42,053 (July 8, 2022); Exec. Order No. 14,079, Securing Access to Reproductive and Other
Healthcare Services, 87 Fed. Reg. 49,505 (Aug. 3, 2022); see also
Presidential Memorandum, Further Efforts To Protect Access to
Reproductive Healthcare Services, 88 Fed. Reg. 4895 (Jan. 26,
2023) (“My Administration remains committed to supporting safe
access to mifepristone * * * .”).
7
ARGUMENT
The Biden administration is weaponizing federal law to promote abortion, preempt state
abortion laws, and undermine the promise of
Dobbs.
The Biden administration is weaponizing federal
law and using federal agencies such as HHS to sidestep the Court’s promise in Dobbs and promote the
administration’s pro-abortion policies without “the
people and their elected representatives.” Dobbs v.
Jackson Women’s Health Org., 597 U.S. 215, 259
(2022). As documented below, in the Biden administration’s zeal to protect and expand access to abortion, including abortion drugs, the administration ignores federal limits on its authority and disregards
state abortion laws.
A. Turning the U.S. Postal Service into a delivery service for abortion drugs.
The Biden administration is seeking to create an
online mail-order abortion economy in all fifty states.
The day Dobbs was issued, President Biden directed
HHS Secretary Becerra to ensure women have “access” to abortion drugs “no matter where they live”
and to make these drugs “as widely accessible as possible,” including via telehealth and the mail.22
Becerra confirmed that he “directed every part of my
Department”—which includes the FDA—“to do any
22 White House, FACT SHEET: President Biden Announces Ac-
tions in Light of Today’s Supreme Court Decision on Dobbs v.
Jackson Women’s Health Organization (June 24, 2022),
https://perma.cc/53SQ-VM42.
8
and everything” to “double down and use every lever
we have.”23
Mailing abortion drugs violates federal law. As
detailed more fully in the amicus brief of the Ethics
and Public Policy Center submitted in this case, federal law broadly prohibits mailing and using any
common carrier to transport any drug, medicine, or
other article used or intended to produce abortion. 18
U.S.C. 1461, 1462.
Nevertheless, “in the wake of Dobbs,” the DOJ Office of Legal Counsel (OLC) issued an unpersuasive
opinion in December 2022 advising the U.S. Postal
Service that federal law does not actually restrict
mailing abortion drugs even when “used to produce
abortion” if the sender “lacks the intent that the recipient of the drugs will use them unlawfully.”24 Federal law, however, makes no distinction between lawful and unlawful abortions. See All. for Hippocratic
Med. v. U.S. Food & Drug Admin., No. 23-10362,
2023 WL 2913725, at *20–21 (5th Cir. Apr. 12, 2023)
(per curium) (observing that HHS and FDA argue
that federal law (section 1461 and section 1462) “does
not mean what it says it means”).
Following DOJ’s post-Dobbs interpretation of federal law, the FDA formally changed the Risk Evaluation and Mitigation Strategy (REMS) for Mifepristone in January 2023 to effectuate its December 2021
decision and allow abortion drugs to be ordered via
23 Press Release, HHS, HHS Secretary Becerra’s Statement on
Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization (June 24, 2022), https://perma.cc/89AZ-RFL4.
24 Application of the Comstock Act to the Mailing of Prescription
Drugs That Can Be Used for Abortions, 46 Op. O.L.C. __, slip op.
at 1–2 (Dec. 23, 2022), https://perma.cc/9VEU-L96K.
9
telehealth without an in-person medical examination, dispensed by retail pharmacies, and shipped nationwide through the mail or common carrier.25 See
All. for Hippocratic Med. v. U.S. Food & Drug Admin., 78 F.4th 210, 267-68 (5th Cir. 2023) (Ho, J.,
concurring in part and dissenting in part) (“The
FDA’s 2021 Mail-Order Decision violates” section
1461 and section 1462, and the 2023 REMS “doubles
down on this violation by permanently eliminating
the in-person dispensing requirement”). HHS touted
the FDA’s new REMS in its report, Marking the 50th
Anniversary of Roe: Biden-Harris Administration Efforts to Protect Reproductive Health Care, as one of
the actions HHS took since Dobbs to protect access to
abortion.26
B. Turning pharmacies into abortion drug
dispensaries.
In its efforts to make abortion drugs more accessible, the Biden administration is also seeking to
turn the nation’s pharmacies into abortion drug dispensaries. Three days after President Biden’s July 8,
2022, executive order directing HHS and Secretary
Becerra “to protect and expand access to abortion
care, including medication abortion,”27 HHS
25 FDA, REMS Single Shared System for Mifepristone 200 mg
(Jan. 2023), https://perma.cc/MJT5-35LF.
26 HHS, Marking the 50th Anniversary of Roe: Biden-Harris Administration Efforts to Protect Reproductive Health Care (Jan.
19, 2023), https://perma.cc/8EB4-P7US (listing FDA decision
making as one of HHS’s six strategic focuses and explaining HHS
“continue[s] to activate all divisions of the Department in service
to [its] commitment to ensuring” access to abortion).
27 Exec. Order No. 14,076, Protecting Access to Reproductive
Healthcare Services, 87 Fed. Reg. 42,053 (July 8, 2022).
10
responded28 by issuing new guidance to “roughly
60,000 U.S. retail pharmacies,” informing them of allegedly “pre-existing statutory requirements” that
they must stock and dispense abortion drugs under
federal nondiscrimination laws, Section 1557 of the
Affordable Care Act (ACA), 42 U.S.C. 18116, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
794.29 These laws, which do not mention abortion,
prohibit sex and disability discrimination. According
to the HHS guidance, a pharmacy “may be discriminating” on the basis of sex or disability if it refuses to
provide contraception that could act as an abortifacient or fill drugs that can be used for or in conjunction with chemical abortion.30
But neither statute or its regulations state pharmacies are required to stock and dispense abortion
drugs. Indeed, the ACA expressly does not preempt
state abortion laws. 42 U.S.C. 18023(c). Further, Section 1557 prohibits sex discrimination by incorporating Title IX of the Education Amendments of 1972,
which is explicitly neutral on abortion and does not
require any entity to provide any service related to
abortion. 20 U.S.C. 1688.
28 Press Release, HHS, HHS Issues Guidance to the Nation’s Re-
tail Pharmacies Clarifying Their Obligations to Ensure Access to
Comprehensive Reproductive Health Care Services (July 13,
2022), https://perma.cc/67LZ-JQTS (announcing the pharmacy
guidance was in response to Biden’s executive order and listing
actions HHS has taken to ensure access to abortion since Dobbs).
29 HHS, Office for Civ. Rts., Guidance to Nation’s Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services (July
13, 2022), https://perma.cc/KTQ5-M7FP.
30 Ibid.
11
HHS also failed to square its pharmacy guidance
with the long-standing appropriations rider known
as the Hyde Amendment, which prohibits HHS funding of most abortions.31
Although HHS claimed the pharmacy guidance
does “not have the force and effect of law,”32 the goal
of the guidance, as touted by the Biden administration, was “to protect access to medication abortion.”33
A state and a Catholic pharmacy sued HHS is federal
court, arguing the guidance violated the Administrative Procedure Act. Texas v. U.S. Dep’t of Health &
Human Servs., No. 23-CV-00022-DC, 2023 WL
4629168, at *2 (W.D. Tex. July 12, 2023). The district
court denied HHS’s motion to dismiss, explaining
that HHS is “smurfing[] an executive policy goal into
‘unreviewable’ and ‘unchallengeable’ pieces while reinforcing the whole with an implicit enforcement
threat * * * in an effort to avoid legal consequence.”
Id. at *12. Noticeably, the Biden administration “has,
before and since Dobbs, openly stated its intention to
operate by fiat to find non-legislative workarounds to
Supreme Court dictates.” Ibid.
Two months later, on September 29, 2023, the Department retreated a half step, revising its pharmacy
guidance “to clarify that the guidance does not
Hyde Amendment, Consolidated Appropriations Act, 2023,
Pub. L. No. 117-328, Div. H., Tit. V, §§ 506–07 (Dec. 29, 2022),
136 Stat. 4908.
32 HHS, Office for Civ. Rts., Guidance to Nation’s Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services (July
13, 2022), https://perma.cc/KTQ5-M7FP.
33 White House, FACT SHEET: The Biden-Harris Administration’s Record on Protecting Access to Medication Abortion (Apr.
12, 2023), https://perma.cc/RBG2-SRTR.
31
12
require pharmacies to fill prescriptions for medication for the purpose of abortion” and that it does not
“suggest or imply an obligation of pharmacies to fill
prescriptions for medication in violation of State
laws, including those banning or restricting abortion.”34
C. Turning hospital emergency rooms into
abortion clinics.
The Biden administration is seeking to turn hospital emergency rooms across the country into on-demand abortion clinics. Within weeks of the Court’s
decision in Dobbs, HHS’s Centers for Medicare and
Medicaid Services (CMS) issued new guidance
(which also purportedly “does not contain new policy”35) claiming the Emergency Medical Treatment
and Labor Act (EMTALA), 42 U.S.C. 1395dd, could
require physicians to perform or complete abortions
and could preempt state abortion laws protecting unborn children.36 HHS Secretary Becerra personally
34 HHS, Guidance to Nation’s Retail Pharmacies: Obligations un-
der Federal Civil Rights Laws to Ensure Nondiscriminatory Access to Health Care at Pharmacies (Sept. 29, 2023),
https://perma.cc/S8ZB-WXRD .
35 Memorandum from CMS, HHS, on Reinforcement of EMTALA
Obligations Specific to Patients Who Are Pregnant or Are Experiencing Pregnancy Loss (July 11, 2022) (rev. Aug. 25, 2022),
https://perma.cc/ND68-86SK. But see Texas v. Becerra, 89 F.4th
529, 541 (5th Cir. 2024) (“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.”).
36 Mem. from Ctrs. for Medicare & Medicaid Servs., HHS, on Reinforcement of EMTALA Obligations Specific to Patients Who
Are Pregnant or Are Experiencing Pregnancy Loss (July 11, 2022)
(rev. Aug. 25, 2022), https://perma.cc/ND68-86SK.
13
sent a letter to healthcare providers reiterating these
purported obligations under EMTALA.37
EMTALA was enacted by Congress in 1986 to ensure patients could receive emergency services even
if they were unable to pay.38 Under EMTALA, Medicare-funded hospitals are required to medically
screen, stabilize, and appropriately transfer an individual with an “emergency medical condition.” 42
U.S.C. 1395dd. EMTALA does not mention abortion
once, and no prior administration has declared that
EMTALA mandates abortions. See Texas v. Becerra,
89 F.4th 529, 546 (5th Cir. 2024) (“EMTALA does not
mandate medical treatments, let alone abortion care,
nor does it preempt [state] law.”). In contrast, EMTALA explicitly acknowledges the “unborn child”
four times, imposing a duty on hospitals to stabilize
the child as well as the mother. See 42 U.S.C.
1395dd(c)(1)(A)(ii), (c)(2)(A), (e)(1)(A)(i), (e)(1)(B)(ii).
Notably, EMTALA is a funding statute that only
preempts state law when it “directly conflicts” with
its requirements. 42 U.S.C. 1395dd(f). Nevertheless,
under HHS’s novel theory, DOJ sued the State of
Idaho, claiming the state’s abortion law was
preempted by EMTALA. This case is currently pending before the Court which will hear oral argument
in April 2024 to answer “whether EMTALA preempts
state laws that protect human life and prohibit abortions, such as Idaho’s Defense of Life Act.” See Moyle
37 Letter from Xavier Becerra, Secretary, HHS, to Health Care
Providers (July 11, 2022), https://perma.cc/3DD4-RWVP.
38 CMS, Emergency Medical Treatment & Labor Act (EMTALA)
(last modified Jan. 5, 2024), https://perma.cc/CU7C-MLCM.
14
v. United States, Nos. 23-726, 23-727 (U.S. pet.
granted Jan. 5, 2024).
D. Turning VA hospitals into abortion clinics.
The Biden administration has turned government
hospitals for veterans and their families into abortion
clinics that provide abortions, even when unlawful
under state law. On September 9, 2022, a few months
after Dobbs, the U.S. Department of Veterans Affairs
(VA) issued an Interim Final Rule (IFR) that unlawfully determined the VA could provide abortions at
VA hospitals in any state for any reason through all
nine months of pregnancy.39
Citing the Court’s Dobbs decision and state abortion laws, the VA claimed it had “good cause” to issue
an IFR and skip advance notice and public comment.40 The IFR claimed that post-Dobbs state laws
aimed at protecting unborn human life created “serious threats” and “urgent risks” to the lives and
health of veterans and their beneficiaries.41 Though
the IFR was issued more than two months after
Dobbs, the VA failed to cite a case of any woman who
faced these alleged “serious threats” or “urgent
risks,” likely because no state abortion law prohibits
saving a mother’s life. Because the VA did not have
“good cause” to bypass general notice-and-comment
requirements, its IFR violates Section 553 of the Administrative Procedure Act. 5 U.S.C. 533.
The VA’s rule also violates other federal laws. The
39 VA, Reproductive Health Services, 87 Fed. Reg. 55,287 (Sept.
9, 2022).
40 Id. at 55,295.
41 Id. at 55,288.
15
IFR recognized that Section 106 of the Veterans
Health Care Act of 1992, Pub. L. No. 102-585, 106
Stat. 4943 (1992), explicitly bans the VA from providing abortions.42 But the VA’s IFR claimed for the first
time that Section 106 was “effectively overt[aken]” by
the Veterans’ Health Care Eligibility Reform Act of
1996 (VHCERA), which amended the 1992 Act.43 The
VA’s claim is utterly implausible. The VHCERA
never referenced abortion or claimed to repeal Section 106. Moreover, the VA’s legal standard—“effectively overtook”—is one this Court has never endorsed. This Court “has repeatedly stated that absent a clearly expressed congressional intention to
repeal, an implied repeal will only be found where
provisions in two statutes are in irreconcilable conflict or where the latter Act covers the whole subject
of the earlier one and is clearly intended as a substitute.” Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius
Inv., LLC, 140 S. Ct. 1649, 1677 (2020) (cleaned up).
Nonetheless, less than two weeks after the VA issued
its IFR, DOJ OLC issued an opinion rubberstamping
the VA’s theory.44
The DOJ’s and VA’s claim that the VA can provide
abortions prohibited under state law also violates the
Assimilative Crimes Act. This law affirms that state
criminal laws (including state laws prohibiting
42 87 Fed. Reg. at 55,289 (“but not including under this section
infertility services, abortions, or pregnancy care”).
43 Ibid.
44 Intergovernmental Immunity for the Dep’t of Veterans Affairs
& Its Emps. When Providing Certain Abortion Servs., 46 Op.
O.L.C. ___, slip op. at 7–8 (Sept. 21, 2022), https://perma.cc/7TA2HBES (“In its recent rule, VA also explained that * * * section
106 has effectively been overtaken by subsequent legislation.
* * * We agree.”).
16
abortion and regulating the practice of medicine) apply to actions within a federal government building,
such as VA hospitals. 18 U.S.C. 13(a). In another
post-Dobbs opinion, DOJ OLC claimed this law likewise provides no barrier to VA-provided abortions,
state law notwithstanding.45
E. Turning taxpayer dollars into abortion
funds.
In addition to promoting and providing access to
abortion, the Biden administration is using taxpayer
dollars to fund abortion.
Hyde Amendment. The Hyde Amendment, a
yearly appropriations rider since 1976, has ensured
that no HHS (and Department of Labor and Department of Education) funds “shall be expended for any
abortion” or “for health benefits coverage that includes coverage of abortion.”46 As then-U.S. Senator
Biden told a concerned constituent in 1994, “those of
us who are opposed to abortions should not be compelled to pay for them.”47 But as President, Biden
now claims that despite the Hyde Amendment and
other federal restrictions on funding abortion, taxpayer dollars can and should be used to fund abortion, especially abortion travel.
45 Application of the Assimilative Crimes Act to Conduct of Fed.
Emps. Authorized by Fed. L., 46 Op. O.L.C. ___, slip op. at 1 (Aug.
12, 2022), https://perma.cc/HR9Q-T5CF.
46 Hyde Amendment, Consolidated Appropriations Act, 2023,
Pub. L. No. 117-328, Div. H., Tit. V, § 506(a)-(b) (Dec. 29, 2022),
136 Stat. 4908.
47 Letter from Joseph R. Biden, Jr., U.S. Senator, to Michael
Gregg (April 7, 1994), available at https://perma.cc/TCB7Z5PB?type=image.
17
In September 2022, DOJ OLC once again issued
a post-Dobbs opinion, this time approving of the administration’s novel legal interpretation that the
Hyde Amendment does not bar HHS providing and
funding transportation for abortion.48
Sick Leave. Three days after Dobbs, the Office of
Personnel Management (OPM) issued guidance stating that paid sick leave for federal workers covers absences for necessary travel, including longer distances out of state, to obtain medical examinations or
treatments.49 While the guidance did not mention
abortion specifically, its timing and a subsequent
White House Fact Sheet confirmed the guidance was
intended to authorize the use of taxpayer-funded sick
leave for abortion travel.50
Military Funds. In October 2022, the Department of Defense (DOD) announced that, despite the
statutory prohibition of using military funds for abortion, see 10 U.S.C. 1093, DOD would transport service members to obtain abortions and use funds so its
48 Application of the Hyde Amend. to the Provision of Transp. for
Women Seeking Abortions, 46 Op. O.L.C. ___ (Sept. 27, 2022),
https://perma.cc/QTQ3-TBT6.
49 OPM, Availability of Sick Leave for Travel to Access Medical
Care (June 27, 2022), https://perma.cc/J4U8-MHDD; see also Letter from Marco Rubio, U.S. Senator, to Kiran Ahuja, Director,
OPM (July 5, 2022), https://perma.cc/YL64-GXGY (stating paid
sick leave for abortion would violate the Hyde Amendment, and
asking for clarification that the policy does not cover travel for
abortion).
50 White House, FACT SHEET: President Biden to Sign Executive Order Protecting Access to Reproductive Health Care Services (July 8, 2022), https://perma.cc/NHE6-D5J9.
18
doctors could obtain a license to perform abortions.51
In a July 2023 White House briefing, John Kirby, Coordinator for Strategic Communications of the National Safety Council—“the President’s principal forum for considering national security and foreign policy matters”52—explained that facilitating elective
abortions for DOD personnel is a “foundational sacred obligation” of U.S. military leaders.53
Title X. Less than a week after Dobbs, HHS announced nearly $3 million in new Title X family planning grants to “increase training and technical assistance to address the challenges that the recent Supreme Court decision may have on their Title X Family planning service delivery.”54 Title X is a federal
program that funds state and private health care organizations offering voluntary family planning services. Section 1008 of Title X explicitly prohibits Title
X funds from being used “in programs where abortion
is a method of family planning.” Public Health Services Act, 42 U.S.C. 300a-6.
51 Memorandum from Lloyd Austin, Secretary of Defense, DOD,
to Senior Pentagon Leadership, Commanders of the Combatant
Commands, Defense Agency and DOD Field Activity Directors,
on Ensuring Access to Reproductive Health Care (Oct. 20, 2022),
https://perma.cc/R4PY-R2AS.
52 White House, National Security Council (last visited Feb. 28,
2024), https://perma.cc/845K-TYU9.
53 White House, Press Briefing by Press Secretary Karine JeanPierre and NSC Coordinator for Strategic Communications John
Kirby (July 17, 2023), https://perma.cc/9ANX-XC5P.
54 Press Release, HHS, HHS Announces New Grants to Bolster
Family Planner Provider Training (June 30, 2022),
https://perma.cc/5MKN-W77R.
19
Nevertheless, as touted in the White House’s Fact
Sheet on the 51st Anniversary of Roe v. Wade,55 HHS
awarded $253 million in 2022 to Title X clinics that
provide abortion, counsel in favor of abortion, refer
for abortion, and fail to physically and financially
separate their abortion services from federally
funded family planning services.56 Indeed, in complete disregard of Section 1008 and the Hyde Amendment, HHS issued a rule in 2021 requiring Title X
providers to refer and counsel women for abortion,
even when abortion is prohibited under state law.57
In March 2023, HHS cut off Title X funding to
clinics in Oklahoma and Tennessee because they do
not provide abortion counseling or referrals.58 HHS
55 White House, FACT SHEET: White House Task Force on Reproductive Healthcare Access Announces New Actions and Marks
the 51st Anniversary of Roe v. Wade (Jan. 22, 2024),
https://perma.cc/3KC7-D4PD.
56 Office of Population Affairs, Office of the Assistant Sec’y for
Health,
HHS,
Title
X
Family
Planning
Program,
https://perma.cc/K9CD-MAAW; see also Press Release, HHS,
HHS Awards $256.6 Million to Expand and Restore Access to Equitable and Affordable Title X Family Planning Services Nationwide (Mar. 30, 2022), https://perma.cc/LM9A-NFPU; HHS, Ensuring Access to Equitable, Affordable, Client-Centered, Quality
Family Planning Services, 86 Fed. Reg. 56,144, 56,145 (Oct. 7,
2021) (removing physical and financial separation requirement
for abortion and federally funded family planning services).
57 86 Fed. Reg. at 56,179 (“[E]ach project must * * * [p]rovide for
social services related to family planning, including counseling,
referral to * * * other social and medical service agencies
* * * .”).
58 Pl.’s Mot. for Prelim. Inj. & Opening Br. in Supp. at 1, Oklahoma v. U.S. Dep’t Health & Human Servs., No. 23-CV-01052-HE
(W.D. Okla. Jan. 26, 2024) (suing HHS for terminating Oklahoma’s award of approximately $4.5 million in Title X funding
20
ignored not only Title X’s limits, but also the agency’s
obligations under the Weldon Amendment, which
prohibits HHS (among others) from discriminating
against funding recipients “on the basis that the
health care entity does not provide, pay for, provide
coverage of, or refer for abortions.”59 Ironically, HHS
is tasked with enforcing violations of the Weldon
Amendment (as well as other health care conscience
protection laws).60
A few weeks later, the Biden administration announced a new HHS Notice of Funding Opportunity
to “establish a safe and secure national hotline” to
provide information about abortion to Title X patients—all on the taxpayer’s dime.61
Medicaid. In August 2022, Secretary Becerra
sent a letter to state governors “in light of the Supreme Court’s decision in Dobbs,” inviting them to
“solely because Oklahoma will not provide counseling or referrals
for abortion”); Letter from Jessica Swafford Marcella, Deputy Assistant Sec’y for Population Affairs, Office of Population Affairs,
Office of the Assistant Sec’y for Health, HHS, and Scott Moore,
Grants Mgmt. Officer, Grants and Acquisitions Mgmt., Office of
the Assistant Sec’y for Health, HHS, to Yoshie Darnall, Program
Director, Tenn. Dep’t of Health, and Ralph Alvarado, Authorized
Official, Tenn. Dep’t of Health, on Decision not to Fund Continuation Award (March 20, 2023), https://perma.cc/UV9A-E39K.
59 Weldon Amendment, Consolidated Appropriations Act, 2023,
Pub. L. No. 117-328, Div. H., Tit. V, § 506(d) (Dec. 29, 2022), 136
Stat. 4908.
60 See Office for Civil Rights, HHS, Conscience and Religious Nondiscrimination
(last
reviewed
Jan.
10,
2023),
https://perma.cc/Y94J-KHDG.
61 White House, FACT SHEET: Biden-Harris Administration Announces Actions to Protect Patient Privacy at the Third Meeting
of the Task Force on Reproductive Healthcare Access (Apr. 12,
2023), https://perma.cc/3DV5-G8DH.
21
apply for Medicaid 1115 waivers to use federal funding to “expand access” to abortion.62 Becerra explained HHS “welcome[d] the opportunity” to work
with states because “this is a priority for HHS,” notwithstanding federal statutory limits on abortion
funding.63
TANF. The Biden administration is not only using federal funds for abortion; it is simultaneously
seeking to remove funding from pregnancy centers
that support both mothers and their children. For example, HHS’s October 2023 proposed regulations for
the Strengthening Temporary Assistance for Needy
Families (TANF) program singled out pro-life pregnancy centers as an example of organizations that
are ineligible for TANF funding because they likely
do not accomplish a TANF purpose.64 Pregnancy centers, however, can and do readily accomplish TANF’s
four statutorily defined purposes: (i) providing “assistance to needy families so that children may be cared
for in their own homes or in the homes of relatives”;
(ii) ending “the dependence of needy parents on government benefits by promoting job preparation,
work, and marriage”; (iii) preventing and reducing
“the incidence of out-of-wedlock pregnancies” and establishing “annual numerical goals for preventing
and reducing the incidence of these pregnancies”;
Letter from Xavier Becerra, Secretary, HHS, and Chiquita
Brooks-LaSure, Administrator, CMS, HHS, to Governors (Aug.
26, 2022), https://perma.cc/9WRA-3DEU.
63 Ibid.
64 HHS, Strengthening Temporary Assistance for Needy Families
(TANF) as a Safety Net and Work Program, 88 Fed. Reg. 67,697,
67,705 (Oct. 2, 2023).
62
22
and (iv) encouraging “the formation and maintenance of two-parent families.” 42 U.S.C. 601(a).
F. Turning HIPAA’s privacy protections into
a shield against laws regulating abortion.
HHS is also seeking to use privacy protections for
health information to block enforcement of federal
and state abortion laws. Citing “concerns” about
Dobbs and state pro-life laws, HHS issued a proposed
rule in April 2023 that would create byzantine new
procedures under the Health Insurance Portability
and Accountability Act of 1996 (HIPAA), Pub. L. No.
104-191, 110 Stat. 1936 (1996), that covered entities
must navigate before they can comply with subpoenas, court orders, and other lawful requests for protected health information (PHI) tangentially related
to “reproductive health care.”65
At present, HIPAA’s privacy regulations are simple: “A covered entity may * * * disclose [PHI] to the
extent that such * * * disclosure is required by law
and the * * * disclosure complies with and is limited
to the relevant requirements of such law.” 45 C.F.R.
164.512(a)(1). But under HHS’s proposed rule, it
would be illegal for a covered entity to comply with
such a request—though it is “required by law”—if the
requested disclosure is believed to be “primarily for
the purpose of investigating or imposing liability on
any person for the mere act of seeking, obtaining,
providing, or facilitating reproductive health care.”66
“[S]eeking obtaining, providing, or facilitating” is defined maximally to include: “expressing interest in,
HHS, HIPAA Privacy Rule to Support Reproductive Health
Care Privacy, 88 Fed. Reg. 23,506, 23,507 (Apr. 17, 2023).
66 Id. at 23,553.
65
23
inducing, using, performing, furnishing, paying for,
disseminating information about, arranging, insuring, assisting, or otherwise taking action to engage in
reproductive health care; or attempting any of the
same.”67 The rule also would define “reproductive
health care” maximally to include all “care, services,
or supplies related to the reproductive health of the
individual.”68
The repercussions of HHS’s proposed rule are profound. One of the verbs in HHS’s laundry list, “inducing,” means to “move by persuasion or influence” or
to “bring about by influence.”69 As such, HHS’s proposed rule would make it illegal for covered entities
to comply with a subpoena investigating an alleged
coerced abortion, something that is illegal under
state law and under the Federal Unborn Victims of
Violence Act, 18 U.S.C. 1841.70
The proposed rule would also make it unlawful for
a covered entity to cooperate with police efforts to
track down human traffickers and pimps that are
67 Id. at 23,552.
68 Ibid.
69 Induce, Merriam-Webster.com, https://perma.cc/UC6V-BWES
(last visited Feb. 28, 2024).
70 18 U.S.C. 1841(a) makes it unlawful to cause the death of an
unborn child through “conduct that violates any of the provisions
of law listed in subsection (b).” Because the provisions listed in
section 1841(b) include the federal law prohibiting interstate domestic violence, 18 U.S.C. 2261, the Act “subjects a defendant to
federal prosecution if he crosses state lines with the intent to injure or intimidate his spouse or partner and thereby causes the
death of that spouse’s or intimate partner’s unborn child.” Michael Holzapfel, The Right to Live, the Right to Choose, and the
Unborn Victims of Violence Act, 18 J. Contemp. Health L. & Pol’y
431, 442 (2002).
24
“paying for” and “arranging” abortions, including for
minors.
This is not hyperbole. HHS admits it is seeking to
thwart law enforcement efforts to “request PHI from
regulated entities” to enforce abortion laws.71 To explain what sorts of uses it has in mind, HHS cites a
report from a “reproductive justice” group that laments states are using reports from “designated
mandatory reporters” to enforce laws against second
and third trimester abortions.72
HHS’s proposed rule would also rewrite HIPAA to
exclude unborn children from the definition of “person.”73 The Department cites only one statute in support of its position, 1 U.S.C. 8, which it claims “is consistent” with its proposed definition of “person.”74 To
the contrary, 1 U.S.C. 8 states, “Nothing in this section shall be construed to affirm, deny, expand, or
contract any legal status or legal right applicable to
any member of the species homo sapiens at any point
prior to being ‘born alive.’” 1 U.S.C. 8. Indeed, the Genetic Information Nondiscrimination Act of 2008
(GINA), Pub. L. No. 110-233, 122 Stat. 881 (2008),
which amended HIPAA, repeatedly states that privacy protections for information of an “individual or
family member” extend to information of “any embryo” and “any fetus carried by such pregnant
woman.” 26 U.S.C. 9802(g); 29 U.S.C. 1182(f); 42
71 88 Fed. Reg. at 23,519.
72 Id. at 23,519
n.170 (citing Laura Huss, Farah Diaz-Tello, Colleen Samari, Self-Care, Criminalized: August 2022 Preliminary
Findings,
If
When
How
(Aug.
2022)
at
2-3,
https://perma.cc/8ZRQ-D8H8indings/).
73 88 Fed. Reg. at 23,552.
74 Id. at 23,523. .
25
U.S.C.
300gg–4(f),
300gg–53(f),
1395ss(x)(4); 42 U.S.C. 2000ff-8(b).
42
U.S.C.
This proposed rule is yet another attempt by the
Biden administration to disregard Dobbs and undermine state abortion laws protecting unborn children
enacted by the people and their elected representatives. Indeed, Secretary Becerra explained that this
rule was a response to President Biden’s direction to
HHS in the wake of Dobbs to “take action to meet this
moment,” which HHS “wasted no time in doing.”75
G. Turning workplace pregnancy accommodations into an abortion mandate.
After Dobbs, the Biden administration not only
seeks to enable and fund abortion, it also seeks to
convert protections for pregnant women into abortion
mandates. In December 2022, Congress passed the
Pregnant Workers Fairness Act (PWFA) with broad
bipartisan support.76 The “pro-mother, pro-baby”
Act77 filled a gap in employment law by requiring employers to provide their employees “reasonable accommodations” for “the known limitations related to
the pregnancy, childbirth, or related medical conditions” unless it poses “an undue hardship” on the employer. 42 U.S.C. 2000gg-1(1).
When abortion concerns were raised on the Senate floor, both Democrat and Republican Senate co75 Press Release, HHS, HHS Proposes Measures to Bolster Pa-
tient-Provider Confidentiality Around Reproductive Health Care
(Apr. 12, 2023), https://perma.cc/V389-7DSJ.
76 Consolidated Appropriations Act, 2023, Pub. L. 117-328, Division II, 136 Stat. 4459, 6084 (2022) (codified at 42 U.S.C. 2000gg–
2000gg-6).
77 168 Cong. Rec. S7050 (daily ed. Dec. 8, 2022) (statement of Sen.
Cassidy).
26
sponsors Bob Casey and Bill Cassidy rejected the notion that the PWFA required abortion accommodations.78 Democrat Senator Patty Murray said, “I can’t
think of a more commonsense, less controversial
bill.”79
Yet, under the Equal Employment Opportunity
Commission’s proposed PWFA regulations, employers—including those who are pro-life—are required
to accommodate their employees’ abortions, even
when unlawful under state law or against the conscience of the employer. The EEOC’s proposed PWFA
regulations are divorced from the intent of Congress
and the text of the PWFA; abortion is not mentioned
once in the PWFA, and it is not a medical condition,
much less a pregnancy- or childbirth-related medical
condition.80
*
*
*
This Court’s promise in Dobbs was clear: the issue
of abortion is returned “to the people and their
elected representatives.” But the Biden administration has used federal agencies and unelected government official to undermine that promise. As documented above, the Biden administration and HHS
have established a pattern and practice of ignoring
78 Ibid. (statement of Sens. Casey) (“I want to say for the record,
however, that under the act, under the Pregnant Workers Fairness Act, the Equal Opportunity Employment Commission, the
EEOC, could not—could not—issue any regulation that requires
abortion leave, nor does the act permit the EEOC to require employers to provide abortions in violation of State law.”); ibid
(statement of Sen. Cassidy) (“I reject the characterization that
this would do anything to promote abortion.”).
79 Ibid.
80 EEOC, Regulations To Implement the Pregnant Workers Fairness Act, 88 Fed. Reg. 54,714 (Aug. 11, 2023).
27
federal and state laws in their efforts to protect and
expand access to abortion, including abortion drugs.
The FDA’s decision making on mifepristone reflects
this pattern of politized actions to unlawfully promote abortion, not expert judgment entitled to deference by the Court.
CONCLUSION
The Court should affirm the Fifth Circuit’s order
and remand for further proceedings.
Respectfully submitted.
ANTHONY R. GORDON
CHRISTIAN MATOZZO
DEMOCRATS FOR LIFE
OF AMERICA
10521 Judicial Drive
Unit 200
Fairfax, VA 22030
(703) 424-6663
FEBRUARY 2024
RACHEL N. MORRISON
Counsel of Record
ERIC N. KNIFFIN
ETHICS & PUBLIC POLICY
CENTER
1730 M Street, N.W.
Suite 910
Washington, D.C. 20036
(202) 682-1200
rmorrison@eppc.org
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.