Friends, 

As Congress has begun work on FY25 appropriations, the Biden administration recently finalized several controversial abortion-expanding rules. In addition, a new bill was introduced in the Senate to require the Biden administration to provide actual data on abortions under a new contentious Veterans Affairs directive. Several items are discussed below.

1. Pregnant Works Fairness Act and Abortion
2. Using HIPAA to Protect Abortion Providers
3. Veterans Affairs and Abortion
4. Abortion before the Supreme Court Again - EMTALA

1. Pregnant Workers Fairness Act and Abortion

In June 2023, the Pregnant Workers Fairness Act (PWFA) took effect after passing with wide bipartisan support. The PWFA was enacted to fill a significant gap in regard to accommodating pregnant women by ensuring that a woman could both continue working with modification and maintain a healthy pregnancy. The legislation contained explicit abortion-related language ensuring the bill could not be used as a back door tool to require employers to pay for abortion. 

On August 11, 2023, the Equal Employment Opportunity Commission (EEOC) published a proposed rule to implement the PWFA.  In an act of blatant overreach, the proposal used the PWFA to establish a nationwide requirement that employers with 15 or more employees make “reasonable accommodation” to enable employees to obtain elective abortion, including providing paid or unpaid leave. This mandate also applies to employers in states with protective pro-life laws. 

On April 19, 2024, the EEOC finalized its abortion-expanding rule. On April 26, 2024, 17 state attorneys general took action, suing the EEOC. Tennessee Attorney General Jonathan Skrmetti said in a statement, “If the EEOC’s rule stands, the State of Tennessee, the co-plaintiff States, and countless employers will be forced to allocate resources to support elective abortions or face federal liability—even in states that have lawfully chosen to restrict elective abortions.”

2. Using HIPAA to Protect Abortion Providers 

Similarly, the Biden administration is attempting to use a new interpretation of the decades-old Health Insurance Portability and Accountability Act of 1996 (HIPAA) to shield the abortion industry. HIPAA requires the development of national standards to prevent protected health information from being disclosed without the patient’s consent. In certain circumstances, the HIPAA Privacy Rule permits covered entities to disclose health information without patient authorization. These include exemptions for law enforcement purposes, abuse, threats to health or safety, and for data collection.

On April 22, 2024, the Biden administration finalized a new HIPAA rule, intended to specifically insulate the abortion industry from accountability and to deliberately interfere with state laws protecting life. This new Biden rule will prevent health care providers in a state with legalized abortion from disclosing information to a court or to law enforcement of a state trying to investigate a potential violation of law. 

There are rare but critical times when investigation into an out-of-state abortion is necessary. If a woman lives in a state with protective pro-life laws but is coerced by an abuser or a trafficker to get an abortion in another state with abortion-friendly laws, the home state will now be limited in its ability to conduct investigations. Similarly, a pro-life state would have much less power to investigate out-of-state individuals distributing dangerous abortion drugs via mail into their state. 

These examples are yet another instance of the Biden Administration running roughshod over Congress to give special protections to abortion providers which will hinder valid investigations.

See more in this Congressional bi-cameral letter in opposition. 

3. Veterans Affairs and Abortion

On September 9, 2022, the Biden Administration, in violation of long-standing statute, pushed its Department of Veterans Affairs (VA) to start performing abortions. The published rule mandates that the VA must provide abortion services through the taxpayer-funded VA health care system by providing for unlimited abortions for undefined "health reasons." 

Despite efforts by Republicans in Congress to reverse this policy, the policy remains in place. While the policy is being rolled out at VA hospitals across the country, the VA has been reluctant and even unwilling to provide exactly how many abortions they are performing. 

On April 16, 2024, Sen. Tommy Tuberville (R-AL) introduced the VA Abortion Transparency Act to require the VA to disclose abortion statistics in the face of department stonewalling. 

National Right to Life will continue to monitor and push back against the extreme Biden Administration agenda. 

4. Abortion before the Supreme Court Again – EMTALA

On April 24, 2024, the U.S. Supreme Court heard oral argument in Moyle v. United States (consolidated with Idaho v. United States) concerning the Biden Administration’s attempt to mandate abortion on demand in hospital emergency rooms throughout all fifty states.

The Emergency Medical Treatment and Active Labor Act (EMTALA) was enacted in 1986 and contains a duty to both a pregnant woman and her unborn child. The act never mentions abortion. EMTALA requires emergency rooms that participate in Medicare to provide “necessary stabilizing treatment.”

The Biden administration argued that its interpretation of EMTALA supersedes Idaho law, which protects unborn children except in the case of an emergency threatening the life of the mother. The decision is expected this summer. 

The U.S. Supreme Court docket for Moyle and Idaho (Nos. 23-726 and 23-727) is available here, and the NRLC brief is available on the docket here.

NRLC’s press release is available here.