What We Are Doing
The Department of Justice will continue to use every tool at its disposal to protect reproductive freedom. The Department of Justice is working to protect the right to the emergency medical care guaranteed by the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd; the security of clinics and other entities providing, dispensing, or delivering reproductive and related health care services; and access to medication abortion drugs as authorized by the Food and Drug Administration.
- Protecting Rights Under the Emergency Medical Treatment and Labor Act
- Protecting Access to Reproductive Services
- Protecting Safe Access to Medication Abortion
Protecting Rights Under the Emergency Medical Treatment and Labor Act
The United States filed suit against the State of Idaho, asserting that the State’s abortion ban, Idaho Code § 18-622, is preempted as applied to stabilizing medical treatment required under the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd. EMTALA provides that every hospital that receives Medicare funds and has an emergency department must offer necessary stabilizing treatment (or an appropriate transfer to a hospital that can provide such treatment) to an individual who arrives at the emergency department suffering from an emergency medical condition that, if left untreated, could be reasonably expected to place the individual’s health in serious jeopardy or result in serious impairment to the individual’s bodily functions or serious dysfunction of any bodily organ or part. Under Idaho Code § 18-622, by contrast, abortion treatment is a felony unless the patient provides proof that the pregnancy (still within the first trimester) is the result of an act of rape or incest; the provider is removing an ectopic or molar pregnancy; or an abortion is “necessary” to prevent the patient’s “death.”
The United States sought a preliminary injunction to prevent Idaho from enforcing Idaho Code § 18-622 as applied to medical care required by EMTALA. On August 24, 2022, the court granted that motion.
Both the State of Idaho and the Idaho Legislature, which partially intervened in the preliminary injunction proceedings, appealed the district court’s preliminary injunction order. The Legislature moved to stay the preliminary injunction pending appeal; the United States opposed the stay motion. On September 28, 2023, a panel of the U.S. Court of Appeals for the Ninth Circuit granted the Legislature’s motion, staying the preliminary injunction. The United States sought reconsideration en banc. On October 10, 2023, the Ninth Circuit ordered that the matter be reheard en banc and vacated the panel’s September 28, 2023 order thereby reinstating the district court’s preliminary injunction.
On November 20, 2023, the State of Idaho and the Idaho Legislature filed applications in the Supreme Court for a stay of the district court's preliminary injunction pending appeal. The State of Idaho alternatively sought certiorari before judgment. The United States opposed the applications for a stay and argued that certiorari before judgment is unwarranted. On January 5, 2024, the Supreme Court stayed the district court's preliminary injunction and agreed to hear the case. The case is set for argument on April 24.
The State of Texas and two medical associations brought suit related to the July 11, 2022 guidance entitled “Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss” that HHS issued shortly after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). The plaintiffs challenged the guidance, bringing various statutory and constitutional claims. The plaintiffs sought a preliminary injunction, which the court granted on August 23, 2022 over the United States’ opposition. An amended partial final judgment was issued on January 13, 2023.
The United States appealed the partial final judgment to the U.S. Court of Appeals for the Fifth Circuit. On January 2, 2024, the Fifth Circuit issued an opinion affirming the district court.
Protecting Access to Reproductive Services
The Civil Rights Division enforces the Freedom of Access to Clinic Entrances Act—also known as the FACE Act—which prohibits threats of force, obstruction, and property damage intended to interfere with reproductive health care services.
Congress enacted the FACE Act in 1994. This statute established federal criminal penalties and civil remedies for violent, obstructionist, or damaging conduct interfering with reproductive health care providers and recipients, and supplemented the penalties available under then-existing federal criminal statutes such as the Hobbs Act, the Travel Act, and federal arson and firearms statutes.
Enforcement of the FACE Act is a priority of the Department of Justice. In addition to criminal prosecutions, the FACE Act empowers the Justice Department to bring civil lawsuits to enjoin FACE Act violations, to obtain civil penalties, and to seek damages for injured persons. State Attorneys General, as well as patients and providers affected by FACE Act violations, likewise can sue for injunctive and monetary relief. And the Justice Department can support those suits by filing statements of interest. The Department has secured a number of important decisions using the civil remedies of FACE to win permanent injunctive relief against persons who violated the Act in the context of blockades, “lock-and-blocks,” threats, and other obstructive conduct. The government has secured judgments that bar specific defendants from entering the property of certain clinics, and the government has secured rulings requiring “buffer zones” around clinics in order to balance the interests of legitimate and protected protest and the rights of clinics to operate their legal businesses.
The statute protects all patients, providers, and facilities that provide reproductive health services, including pro-life pregnancy counseling services and any other pregnancy support facility providing reproductive health care.
Key resources:
- Civil Rights Division's FACE Act page
- Resource Booklet for Reproductive Health Care Providers & Their Staff
Key cases:
The Assistant Attorney General for the Civil Rights Division leads the National Task Force On Violence Against Reproductive Health Care Providers, which was established in November 1998. The Task Force coordinates national investigation and prosecution of violence against reproductive health care providers, patients, and facilities—including pregnancy counseling services and any other facility that provides reproductive health care—collects and coordinates information regarding such incidents, makes security recommendations to enhance the safety of providers, assists U.S. Attorneys’ Offices investigating and prosecuting clinic violence, and helps train prosecutors and investigators to handle such cases.
Protecting Safe Access to Medication Abortion
Several medical associations and individual physicians sued FDA challenging FDA’s approval and regulation of the abortion drug mifepristone. On November 18, 2022, the plaintiffs filed a motion for preliminary injunction seeking an order that would, among other things, require FDA to withdraw or suspend its 2000 approval of Mifeprex (mifepristone tablets 200 mg) and its 2019 approval of a generic version of mifepristone and remove them from the list of approved drugs. The United States opposed the plaintiffs’ motion for a preliminary injunction.
On April 7, 2023, the district court granted the plaintiffs’ motion for a preliminary injunction in part, staying FDA’s approval of mifepristone. The district court stayed the applicability of its order for seven days to allow the United States an opportunity to seek emergency relief from the appellate court.
The United States appealed the district court’s decision and sought a stay of the district court’s order pending appeal. On April 12, 2023, the U.S. Court of Appeals for the Fifth Circuit granted in part and denied in part the motion for a stay pending appeal, staying the district court’s order only as to the 2000 approval of mifepristone. The United States subsequently sought emergency relief from the Supreme Court, and on April 21, 2023, the Supreme Court stayed the district court’s order pending disposition of the appeal in the Fifth Circuit and through the disposition of any Supreme Court proceedings.
After briefing and oral argument, on August 16, 2023, the Fifth Circuit vacated the district court’s order with respect to the 2000 approval of mifepristone and to the 2019 approval of the generic. The Fifth Circuit otherwise upheld the district court’s order.
On September 8, 2023, the United States sought Supreme Court review of the Fifth Circuit’s decision. On December 3, 2023, the Supreme Court agreed to hear the case. The case is set for argument on March 26.
On November 3, 2023, Missouri, Kansas, and Idaho filed a motion to intervene in the district court. The United States opposed the motion. On January 12, 2024, the district court granted intervention, and later stayed the answer deadline for the states’ complaint. Missouri, Kansas, and Idaho also moved to intervene in the Supreme Court. The United States opposed intervention. On February 20, 2024, the Supreme Court denied intervention.
The State of Washington, 16 other states, and the District of Columbia sued the FDA in the U.S. District Court for the Eastern District of Washington over FDA’s approval of modifications to the Risk Evaluation and Mitigation Strategy (REMS) for mifepristone (i.e., certain restrictions on the distribution of mifepristone), raising statutory and constitutional claims. The plaintiff States moved for a preliminary injunction. On April 7, 2023, the district court preliminarily enjoined FDA from “altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 Risk Evaluation and Mitigation Strategy under 21 U.S.C. § 355-1 in Plaintiff States.”
The district court has deferred setting a summary judgment briefing schedule until the Supreme Court issues its opinion in FDA v. Alliance for Hippocratic Medicine.
On March 30, 2023, the State of Idaho and six other states moved to intervene as plaintiffs in the case. On April 13, 2023, the United States opposed the motion for intervention. On April 21, 2023, the district court denied the motion for intervention. The proposed intervenors have appealed the denial of their motion, and the appeal is ongoing.
In 2017, a physician and non-profit organizations challenged FDA’s Risk Evaluation and Mitigation Strategy (REMS) for mifepristone, raising statutory and constitutional claims. The parties subsequently cross-moved for summary judgment, but the court terminated the motions and stayed the case pending the Supreme Court’s decision in June Medical Services v. Russo. In March 2021, the court lifted the stay and directed the parties to refile their motions for summary judgment. In April 2021, FDA announced it would exercise enforcement discretion with respect to the in-person dispensing requirement, and in May 2021, FDA announced it would undertake a review of the REMS. The parties jointly sought a further stay of the case while FDA conducted its review. Thereafter, the case was administratively closed until February 2023.
On March 30, 2023, the plaintiffs filed a motion to supplement or amend their complaint to challenge the 2023 REMS and remove certain claims, and on April 10, 2023, the plaintiffs filed an amended and supplemental complaint. On May 4, 2023, the United States moved to stay proceedings pending appellate proceedings in Alliance for Hippocratic Medicine v. FDA. The United States subsequently sought to stay proceedings pending the resolution of district court proceedings in Washington v. FDA. On August 8, 2023, the district court denied the United States' motion to stay proceedings pending either of those cases.
On May 8, 2023, a group of abortion providers in Virginia, Montana, and Kansas challenged FDA’s Risk Evaluation and Mitigation Strategy (REMS) for mifepristone, raising statutory and constitutional claims. The same day, they filed a motion for a preliminary injunction, asking the court to enjoin FDA from altering the status quo with respect to the REMS in plaintiffs’ states. The United States opposed the motion for a preliminary injunction and moved to stay the case pending appellate proceedings in Alliance for Hippocratic Medicine v. FDA.
On August 21, 2023, the district court denied the plaintiffs’ motion for a preliminary injunction. On January 12, 2024, the district court stayed the case pending the Supreme Court's decision in FDA v. Alliance for Hippocratic Medicine.