Page:Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (5th Cir. Aug. 16, 2023).pdf/28

 and Active Labor Act to require hospitals to provide care to, among others, a woman with an “incomplete medical abortion,” irrespective of objections of conscience. Reinforcement of EMTALA Obligations Specific to Patients Who Are Pregnant or Are Experiencing Pregnancy Loss, at 6, Centers for Medicare & Medicaid Services (July 11, 2022). A district court has enjoined that guidance, and an appeal is proceeding before this court. Texas v. Becerra, 623 F. Supp. 3d 696 (N.D. Tex. 2022) (entering preliminary injunction); Texas v. Becerra, No. 5:22-CV-185, 2023 WL 2467217 (N.D. Tex. Jan. 10, 2023) (final judgment and permanent injunction).

At oral argument, counsel for FDA disputed that EMTALA binds individual doctors, arguing instead that the obligation to provide abortion-related care runs to hospitals. That is, individual doctors may assert conscience objections so long as one doctor at the hospital can provide the required care. This raises the question of what would happen if no other doctor were available—a situation that seems particularly likely in smaller clinics. But setting that issue to the side, counsel’s argument appears to conflict with the Government’s position on appeal in the Texas case. See Br. for Appellants at 25, Texas v. Becerra (5th Cir. May 1, 2023) (No. 23-10246) (“EMTALA requires doctors to offer abortion care when that care is the necessary stabilizing treatment for an emergency medical condition.”) (emphasis added); id. at 27 (“[W]hen pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care.”) (quoting United States v. Idaho, 623 F. Supp. 3d 1096, 1109 (D. Idaho 2022)).

We conclude that the federal laws Defendants cite do not alleviate the Doctors’ conscience injury, at least for purposes of this preliminary posture. The inconsistencies between the Government’s position in Texas v. Becerra and FDA’s position here tend to rebut the notion that Doctors are free to refuse treatment to mifepristone patients.