Abortion Pill Case Hits on Doctors’ Conscience Objection Shield

US abortion medication access may rest on whether doctors can decline to provide emergency care to patients experiencing abortion complications, a question dividing the federal government and conservative physicians at the Supreme Court.

The Emergency Medical Treatment and Labor Act requires physicians to help patients in life-threatening situations regardless of circumstances. Since the Supreme Court overturned Roe v. Wade in 2022, the Biden administration has taken the position that EMTALA trumps state abortion restrictions in emergency situations, using guidance and the regulatory process to ensure women can access reproductive services when their lives are in danger.

But whether individual doctors can get exemptions on religious or moral grounds was a question that took center stage in Supreme Court arguments March 26 over access to the abortion pill mifepristone.

Solicitor General Elizabeth Prelogar told the justices that the “government has never taken the position that EMTALA would override an individual doctor’s conscience objections.”

Yet Alliance Defending Freedom Attorney Erin Hawley, who argued on behalf of doctors trying to restrict mifepristone access, said the government “cannot get its story straight on EMTALA.”

Crucial to the mifepristone case is whether the conservative physicians challenging the government can show they were harmed by federal decisions on the abortion pill and thus have standing to sue. Whether doctors can object to providing reproductive services, including helping people who have taken abortion medication, could prove a factor in the Supreme Court’s decision on that question.

The doctors say they have standing because the Food and Drug Administration has allowed mifepristone to be prescribed in a way that’s “insufficient to prevent harm” from taking the drug, said Catherine Weiss, a Lowenstein Sandler LLP partner and a former ACLU Reproductive Freedom Project director.

“That means that women with injuries related to having taken mifepristone show up in their emergency room, and the doctors then assert that they have conscientious objections to treating these women,” Weiss said in an interview.

Showing Standing

Anti-abortion physicians in the mifepristone case are seeking to overturn FDA decisions in 2016 and 2021 that expanded access to the medication—the first pill used in a two-drug treatment to end early-term pregnancies. These FDA changes included expanding the window of use from seven to up through 10 weeks of pregnancy and allowing the pill to be prescribed via telemedicine.

Justices across the ideological spectrum questioned during oral arguments March 26 whether EMTALA actually prevents doctors in this case from stating their own conscience objections to providing emergency reproductive care.

“The obvious common-sense remedy would be to provide them with an exemption, that they don’t have to participate in this procedure,” but “federal law already gives them that,” Justice Ketanji Brown Jackson said while questioning Prelogar.

Without such traceable harm, doctors may have difficulty demonstrating they have Article 3 standing under the Constitution to challenge the FDA’s safety changes, said Laurie Sobel, associate director for women’s health policy at KFF.

Under Article 3, litigants must show they have standing to sue by proving they have personally suffered or will “imminently” face harm, and that the harm is traceable to the actions of the person or entity being sued.

“There was a lot of discussion around, ‘if their harm is a conscious objection, then aren’t they already exempt from providing the care that they object to?’” Sobel said.

The government, however, has previously argued that EMTALA trumps conscience protections doctors may have to providing care to individuals with complications from abortions, said John Bursch, an Alliance Defending Freedom attorney, in an interview with Bloomberg Law. Bursch represented anti-abortion physicians in Texas v. Becerra, a case in which the US Court of Appeals for the Fifth Circuit blocked the Biden administration from enforcing EMTALA guidance.

In a briefing at the district court level of that case, the Biden administration argued that there isn’t evidence that Congress wanted conscience provisions to trump EMTALA.

As for this view, the government started to “walk it back” in its fight over mifepristone, Bursch said.

The Department of Health and Human Services didn’t respond to a request for comment.

Conscience Protections

At the Supreme Court on March 26, Prelogar argued EMTALA “imposes obligations on hospitals,” and “conscience protections” would “continue to apply and shield a doctor who doesn’t want to provide care in violation of those protections.”

Justice Brett Kavanaugh asked Prelogar to “confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion.”

Prelogar said this was correct, arguing “federal conscience protections provide broad coverage here.”

The justices “were trying to see whether an exception to this issue already existed,” said Sabrina Talukder, director of the Women’s Initiative at the Center for American Progress. “This remedy already exists. Why do you need a nationwide injunction?”

Weiss agreed, saying hospitals have “many ways” to follow EMTALA, including by “staffing the emergency room to ensure that a doctor who does not have conscientious objections is on duty.”

Jaime A. Santos, a partner at Goodwin Procter LLP who represented a coalition of Democratic governors in their amicus brief filed in this case, said justices could toss ADF’s lawsuit by saying anti-abortion doctors haven’t demonstrated why existing federal law isn’t enough to protect a physician’s conscience objections.

Even if a doctor faced a scenario described by ADF, “there actually are federal laws that serve as a backstop to ensure that doctors don’t have to violate” conscience objections, Santos said in a March 27 webinar on the oral arguments.

Interpretation in Question

In 2022, months after the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision to undo federal abortion rights, the Biden administration proposed a rule to balance health worker rights with obligations to provide reproductive health services.

The proposal, which noted that “health care systems must effectively deliver services—including safe legal abortions—to all who need them in order to protect patients’ health and dignity,” faced blowback from conservative groups. The final rule was released earlier this year.

The Biden rule was a revision of a Trump-era rule that never went into effect.

Roger Severino, who led the HHS’ Office for Civil Rights in the Trump administration, said the Biden administration “did a radical abandonment of conscience protection enforcement when they took office.”

Under Severino, the HHS announced a Conscience and Religious Freedom Division in the OCR. Severino said the Biden administration later “disbanded” the division.

“Nobody was tasked specifically with that enforcement function as a focus anymore,” Severino said.

In 2022, the Biden administration put out EMTALA guidance stating that the law applies to abortion services. That guidance came under fire in Texas v. Becerra.

The guidance “doesn’t explicitly show how EMTALA squares with the conscience objections,” said Lawrence Gostin, faculty director of Georgetown University’s O’Neill Institute for National and Global Health Law.

“It would be much better if the administration were to issue guidance that said that EMTALA applies so that all emergency services have to be provided to pregnant individuals, but that they don’t necessarily have to be provided by a particular doctor who has an objection,” Gostin said. “The administration has been too vague about it.”

Severino, however, said the Biden administration was using “a backdoor way of forcing hospitals to perform abortions.”

“They knew what they were doing. But all of a sudden, when they get before the Supreme Court and get the hard questions, when they think it’s strategically advantageous, they cloak themselves in the mantle of conscience protection, which is hypocritical in the extreme.”

EMTALA is set to come before justices again April 24 when the Supreme Court will hear arguments in an Idaho case questioning whether the federal law’s requirements on providing lifesaving emergency care preempts state abortion bans. ADF will again spar with the Biden administration in the case.

“Everything is being set up for Idaho v. United States,” Talukder said.

Justices are likely to bring up Prelogar’s interpretation of EMTALA in the Idaho case, so “there’s not wiggle room there to take a different position,” Goodwin’s Santos said.