5th Circuit Texas v. Becerra Amicus Brief

The First Amendment has never been confined within the walls of a church, as if it were a wild animal needing to be caged. On the contrary, the Constitution broadly guarantees liberty of religion and conscience. Liberty extends beyond individuals to associations like the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Associations (CMDA), co-plaintiffs in this case with the State of Texas. These associations consist of medical professionals who wish to conduct business with integrity, consistent with conscience, ethics, and religious faith. Not everyone shares those values but cutting conscience out of the medical profession is a frightening prospect for patients, doctors, and other medical personnel. This is particularly true following the Supreme Court’s decision returning abortion regulation to the states. Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2243 (2022).

Now, in a brazen end-run around Dobbs, the Department of Health and Human Services (“HHS”) has issued Guidance under the Emergency Medical Treatment & Labor Act (EMTALA), 42 U.S.C.S. § 1395dd, demanding that providers perform abortions regardless of state law and directly contrary to EMTALA’s statutory requirement to consider the welfare of an unborn child when stabilizing a pregnant woman (the “Abortion Mandate”). Specifically: “If 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.” Guidance at 1.

This “broad and undifferentiating” Guidance “provides no exceptions for healthcare providers with genuinely held religious objections to abortions, which may be required under federal appropriations laws or the Religious Freedom Restoration Act [RFRA].” Texas v. Becerra, 2022 U.S. Dist. LEXIS 151142, *83- 84 (N.D. Tex. 2022). This failure to consider religious liberty subjects the Guidance to claims that it is “arbitrary and capricious.”

The Abortion Mandate, much like the Contraception Mandate that preceded it, attacks liberties Americans have treasured for over 200 years—liberties no one can be required to sacrifice as a condition for participating in the public square. The Mandate is as great an assault on conscience as the constitutional evil of compelling citizens to support religious beliefs they do not hold. It is anathema to the basic First Amendment principle that the government may not coerce its citizens to endorse or support a cause. The injury here is particularly insidious, forcing conscientious objectors to personally perform a morally objectionable procedure—abortion.