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 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 is preempted as applied to stabilizing medical treatment required under the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd. The United States sought a preliminary injunction; on August 24, 2022, the court granted that motion.
The court’s order provides that, while this case continues, the State of Idaho (including all of its officers, employees, and agents) is not permitted to enforce Idaho Code § 18-622(2)-(3) as applied to medical care required by EMTALA, and is specifically prohibited from initiating any criminal prosecution against, attempting to suspend or revoke the professional license of, or seeking to impose any other form of liability on, any medical provider or hospital based on their performance of conduct that is defined as an “abortion” under Idaho Code § 18-604(1), but that is necessary to avoid (i) “placing the health of” a pregnant patient “in serious jeopardy”; (ii) a “serious impairment to bodily functions” of the pregnant patient; or (iii) a “serious dysfunction of any bodily organ or part” of the pregnant patient, pursuant to 42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii).
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). Plaintiffs sought a preliminary injunction, which the court granted on August 23, 2022. The United States appealed that decision. The court subsequently entered a partial final judgment on December 22, 2022. The United States is appealing that decision as well.
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.
- Civil Rights Division's FACE Act page
- Resource Booklet for Reproductive Health Care Providers & Their Staff
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 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, 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 Mifeprex and remove them from the list of approved drugs. The United States opposed plaintiffs’ motion on January 13.