Nos.

23-235, 23-236

In the Supreme Court of the United States

__________
U.S. FOOD AND DRUG ADMINISTRATION, ET AL.,
Petitioners,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
__________
DANCO LABORATORIES, L.L.C.,
Petitioner,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
__________
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
__________

BRIEF AMICUS CURIAE OF DEMOCRATS FOR

LIFE OF AMERICA IN SUPPORT OF
RESPONDENTS
__________
RACHEL N. MORRISON
Counsel of Record
ETHICS & PUBLIC POLICY CENTER
1730 M Street, N.W., Suite 910
Washington, D.C. 20036
(202) 682-1200
[email protected]

Counsel for Amicus Curiae

 i
TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................. i

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF THE AMICUS CURIAE .................. 1

SUMMARY OF ARGUMENT ................................... 2

ARGUMENT .............................................................. 2

I. Turning the U.S. Postal Service into a

delivery service for abortion drugs. ................ 5

II. Turning pharmacies into abortion drug

dispensaries. .................................................... 6

III.Turning hospital emergency rooms into

abortion clinics. ............................................... 7

IV. Turning veterans’ hospitals into abortion

clinics ............................................................... 9

V. Turning Taxpayer Dollars into Abortion

Funds ............................................................. 10

VI. Turning health privacy laws into shields

from law enforcement. .................................. 14

CONCLUSION ........................................................ 16
 ii
TABLE OF AUTHORITIES

Page(s)
Cases

Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60 (1986) .......................................... 5, 6, 7

Statutes

29 U.S.C. § 207 (1938) ............................................... 12

Regulations

EEOC Guidelines on Discrimination

Because of Religion, 29 C.F.R. § 1605.1 ................ 4

Other Authorities

18 Oxford English Dictionary 1010 (2d ed.

1989) ..................................................................... 11
 1
INTEREST OF THE AMICUS CURIAE1
Democrats for Life of America (“DFLA”) is the
preeminent national organization for pro-life Demo-
crats. DFLA believes that the protection of human
life at all stages is the foundation of human rights,
authentic freedom, and good government. These be-
liefs animate DFLA’s opposition to abortion, eutha-
nasia, capital punishment, embryonic stem cell re-
search, poverty, genocide, and all other injustices
that directly and indirectly threaten human life.
DFLA shares the Democratic Party’s historic com-
mitments to supporting women and children,
strengthening families and communities, and striv-
ing to ensure equality of opportunity, reduction in
poverty, and an effective social safety net that guar-
antees that all people have sufficient access to food,
shelter, health care, and life’s other basic necessities.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici or their counsel made a monetary
contribution to fund the brief’s preparation or submission.
 2
SUMMARY OF ARGUMENT
.

ARGUMENT

The Biden administration is weaponizing

federal law to promote abortion, preempt state
abortion laws, and undermine the promise of
Dobbs.
“Everything is on the table.” Those are the words
of Xavier Becerra, Secretary of the U.S. Department
of Health and Human Services (HHS), which over-
sees the Food and Drug Administration (FDA), when
CNN asked about the district court’s decision in this
case.2 Becerra refused to answer whether ignoring
the court’s decision was off the table, explaining that
the Biden administration is “considering all op-
tions.”3
Secretary Becerra’s stance is emblematic of the
Biden administration’s attempts to use every lever of
the executive branch to resist the Court’s decision in
Dobbs v. Jackson Women’s Health Organization—“an
extreme decision” according to President Joe Biden.4
This Court’s promise in Dobbs is that the issue of

2 Jasmine Wright, HHS Secretary Says ‘Everything Is on the Ta-

ble’ in Response to Medication Abortion Ruling, CNN (Apr. 9,
2023, 7:21 PM), https://www.cnn.com/2023/04/09/politics/xavier-
becerra-abortion-mifespristone-ruling-cnntv/index.html.
3 Id.
4 White House, Remarks by President Biden Before Meeting with

His Task Force on Reproductive Healthcare Access (Jan. 22,

2024), https://www.whitehouse.gov/briefing-room/speeches-re-
marks/2024/01/22/remarks-by-president-biden-before-meeting-
with-his-task-force-on-reproductive-healthcare-access/.
 3
abortion is returned “to the people and their elected
representatives.” 597 U.S. 215, 259 (2022). Yet since
the Court’s decision on June 24, 2022, the Biden ad-
ministration has done everything in its power to frus-
trate that promise. The administration is seeking to
use federal agencies and unelected bureaucrats to
impose a mail-order abortion economy paid for by the
American taxpayer in all fifty states.
The very day Dobbs came down, President Biden
claimed the decision would result in “grave conse-
quences” and announced “actions” his Administra-
tion would take in response, including “protecting ac-
cess” to abortion drugs.5 He directed Secretary
Becerra to “identify all ways to ensure that mifepris-
tone is as widely accessible as possible[,] . . . includ-
ing when prescribed through telehealth and sent by
mail.”6
The same day, Secretary Becerra announced
HHS’s “commitment to ensure every American has
access to . . . medication abortion” and promised, “we
will double down and use every lever we have to pro-
tect access to abortion.”7 Attorney General Merrick
Garland also issued a statement on Dobbs, claiming,

5 White House, FACT SHEET: President Biden Announces Ac-

tions In Light of Today’s Supreme Court Decision on Dobbs v.
Jackson Women’s Health Organization (June 24, 2022),
https://www.whitehouse.gov/briefing-room/statements-re-
leases/2022/06/24/fact-sheet-president-biden-announces-actions-
in-light-of-todays-supreme-court-decision-on-dobbs-v-jackson-
womens-health-organization/.
6 Ibid.
7 HHS, HHS Secretary Becerra’s Statement on Supreme Court

Ruling in Dobbs v. Jackson Women’s Health Organization (June

24, 2022), https://perma.cc/89AZ-RFL4.
 4
without citing any legal authority, that “States may
not ban Mifepristone based on disagreement with the
FDA’s expert judgment about its safety and effi-
cacy.”8
Rather than waiting for Congress to heed his call
to codify Roe v. Wade, President Biden “committed to
doing everything in his power” to “protect access” to
abortion.9 At the President’s direction, federal agen-
cies and unelected bureaucrats began reinterpreting
federal laws to force states and private individuals to
perform abortions and use taxpayer dollars to pay for
abortion. Never-before-found authority in federal law
was conveniently discovered post-Dobbs that pur-
portedly allows the administration to impose abor-
tion mandates and preempt state laws protecting un-
born human life.
Within this context, the Department of Justice
(DOJ) urges the Court in this case to defer to un-
named “agency experts” and not “second-guess[] the
FDA’s expert judgment” on abortion. The FDA’s judg-
ment, however, cannot be viewed in a vacuum unat-
tenuated from the Biden administration’s and HHS’s
unlawful actions to promote abortion, preempt state
abortion laws, and undermine the promise of Dobbs.

8 Press Release, DOJ, Attorney General Merrick B. Garland

Statement on Supreme Court Ruling in Dobbs v. Jackson
Women’s Health Organization (June 24, 2022), https://www.jus-
tice.gov/opa/pr/attorney-general-merrick-b-garland-statement-
supreme-court-ruling-dobbs-v-jackson-women-s.
9 White House, FACT SHEET: President Biden to Sign Execu-

tive Order Protecting Access to Reproductive Health Care Ser-

vices (July 8, 2022), https://www.whitehouse.gov/briefing-
room/statements-releases/2022/07/08/fact-sheet-president-biden-
to-sign-executive-order-protecting-access-to-reproductive-
health-care-services/.
 5
Add transition.
I. Turning the U.S. Postal Service into a deliv-
ery service for abortion drugs.
The Biden administration is seeking to create a
online mail-order abortion economy in all fifty states
contrary to federal and state law. The day Dobbs was
issued, President Biden directed HHS Secretary
Becerra to ensure women have “access” to “medica-
tion abortion” “no matter where they live” and to
make these drugs “as widely accessible as possible”—
“including when prescribed through telehealth and
sent by mail.”10 Becerra reiterated that he “directed
every part of my Department to do any and every-
thing” to “double down and use every lever we
have.”11
As detailed more fully in the Amicus Brief of the
Ethics and Public Policy Center submitted in this
case, the Comstock Act of 1873 explicitly and unam-
biguously prohibits mailing and using any common
carrier to transport any drug, medicine, or other ar-
ticle used to perform or intended for produce abor-
tion. 18 U.S.C. 1461, 1462.
However, “in the wake of Dobbs,” the Department
of Justice’s Office of Legal Counsel issued an opinion
advising the U.S. Postal Service that the Comstock
Act does not actually restrict mailing chemical

10 White House, FACT SHEET: President Biden Announces Ac-

tions In Light of Today’s Supreme Court Decision on Dobbs v.
Jackson Women’s Health Organization (June 24, 2022),
https://perma.cc/53SQ-VM42.
11 Press Release, HHS, HHS Secretary Becerra’s Statement on

Supreme Court Ruling in Dobbs v. Jackson Women’s Health Or-

ganization (June 24, 2022), https://perma.cc/89AZ-RFL4.
 6
abortion drugs even when “used to perform abortion”
if the sender “lacks the intent that the recipient of
the drugs will use them unlawfully.”12
Seizing on DOJ’s post-Dobbs interpretation of the
Comstock Act, the FDA again updated the Risk Eval-
uation and Mitigation Strategy (REMS) for Mifepris-
tone in January 2023 to allow chemical abortion
drugs to be ordered via telehealth without an in-per-
son medical examination, resulting in abortion drugs
being shipped nationwide through the mail or com-
mon carrier.13
II. Turning pharmacies into abortion drug dis-
pensaries.
HHS is seeking to turn the nation’s pharmacies
into abortion drug dispensaries. On July 13, 2022,
HHS issued new guidance (which allegedly does “not
have the force and effect of law”) to “roughly 60,000
U.S. retail pharmacies,” informing them of allegedly
“pre-existing statutory requirements” that they must
stock and dispense chemical abortion drugs under
federal nondiscrimination laws (list statutes?).14 Ac-
cording to HHS, a pharmacy “may be discriminating”
on the basis of sex or disability if it refuses to provide

12 Application of the Comstock Act to the Mailing of Prescription

Drugs That Can Be Used for Abortions, 46 Op. O.L.C. __, slip op.
at 1-2 (Dec. 23, 2022), available at https://perma.cc/9VEU-L96K.
13 FDA, REMS Single Shared System for Mifepristone 200 mg

(Jan. 2023), https://perma.cc/MJT5-35LF.

14 HHS, Off. for Civ. Rts., Guidance to Nation’s Retail Pharma-

cies: Obligations under Federal Civil Rights Laws to

Ensure Access to Comprehensive Reproductive Health Care Ser-
vices (July 13, 2022), https://perma.cc/KTQ5-M7FP. Cite ADF
pharmacy guidance lawsuit?
 7
contraception that could act as an abortifacient or fill
drugs that can be used for or in conjunction with
chemical abortion. The goal of this guidance, as
touted by the administration, was “to protect access
to medication abortion.”15
No mention is made of federal conscience protec-
tion laws, such as the XXX, which XXXX. HHS also
fails to square its guidance with the Hyde Amend-
ment, which prohibits federal funding of most abor-
tions. Hyde Amendment, Consolidated Appropria-
tions Act, 2022, Pub. L. No. 117-103, Div. H., Tit. V,
§§ 506–07.
III. Turning hospital emergency rooms into
abortion clinics.
HHS is seeking to turn hospital emergency rooms
across the country into on-demand abortion clinics.
Within weeks of the Court’s decision in Dobbs, HHS’s
Centers for Medicare and Medicaid Services is-
sued new guidance (which purportedly “does not con-
tain new policy”16) stating the Emergency Medical
Treatment and Labor Act (EMTALA), 42 U.S.C.
1395dd, could require physicians to perform or com-
plete abortions and could preempt state abortion

15 White House, FACT SHEET: The Biden-Harris Administra-

tion’s Record on Protecting Access to Medication Abortion (April
12, 2023), https://perma.cc/RBG2-SRTR.
16 Mem. from Ctrs. for Medicare & Medicaid Servs. on Reinforce-

ment of EMTALA Obligations Specific to Patients Who Are Preg-

nant or Are Experiencing Pregnancy Loss (July 11, 2022) (rev.
Aug. 25, 2022), https://perma.cc/ND68-86SK. Cf. Texas v.
Becerra, No. 23-10246, 16 (5th Cir. Jan. 2, 2024) (“Put simply, the
Guidance sets out HHS’s legal position-for the first time-regard-
ing how EMTALA operates post-Dobbs. The Guidance is new pol-
icy; it does not ‘merely restate’ EMTALA’s requirements.”).
 8
laws protecting unborn children.17 HHS Secretary
Becerra personally sent a letter to healthcare provid-
ers reiterating these purported obligations under
EMTALA.18
EMTALA was enacted by Congress in 1986 to en-
sure patients could receive emergency services even
if they were unable to pay. Medicare-funded hospi-
tals are required to medically screen, stabilize, and
appropriately transfer an individual with an “emer-
gency medical condition.” 42 U.S.C. 1395dd. Abortion
is not mentioned once, and no prior administration
has declared that EMTALA mandates abortions. See
Texas v. Becerra, No. 23-10246, 25 (5th Cir. Jan. 2,
2024) (“EMTALA does not mandate medical treat-
ments, let alone abortion care, nor does it preempt
[state] law.”). Further, EMTALA explicitly acknowl-
edges the “unborn child” four times, imposing a duty
to stabilize the child as well as the mother. 42 U.S.C.
1395dd(c)(1)(A)(ii), (c)(2)(A), (e)(1)(A)(i), (e)(1)(B)(ii).
Notably, EMTALA is a funding statute that only
preempts state law when it “directly conflicts.” 42
U.S.C. 1395dd(f). Nevertheless, under HHS’s novel
theory, the DOJ sued Idaho, claiming the state’s
abortion law was preempted by EMTALA. This case
is currently pending before the Court to clarify
“whether EMTALA preempts state laws that protect
human life and prohibit abortions, like Idaho’s

17 Mem. from Ctrs. for Medicare & Medicaid Servs. on Reinforce-

ment of EMTALA Obligations Specific to Patients Who Are Preg-
nant or Are Experiencing Pregnancy Loss (July 11, 2022) (rev.
Aug. 25, 2022), https://perma.cc/ND68-86SK.
18 Letter from HHS Sec. Xavier Becerra to Health Care Providers

(July 11, 2022), https://www.hhs.gov/sites/default/files/emer-

gency-medical-care-letter-to-health-care-providers.pdf.
 9
Defense of Life Act.” Moyle v. United States, U.S.
Nos. 23-726, 23-727.
IV.Turning veterans’ hospitals into abortion
clinics
The U.S. Department of Veterans’ Affairs (VA) de-
termined after Dobbs that it could provide abortions
at VA hospitals in any state for any reason through
all nine months of pregnancy.
Citing the Court’s Dobbs decision and state abor-
tion laws, the VA claimed it had “good cause” to issue
an interim final rule (IFR) providing abortion to vet-
erans and certain beneficiaries.19 Because certain
States have or may enact laws prohibiting abortion
post-Dobbs, veterans and beneficiaries faced “serious
threats” and “urgent risks” to their lives and
health.20 Despite issuing its rule over two months af-
ter Dobbs, the VA failed to cite a single woman who
faced these alleged “serious threats” or “urgent
risks,” likely because no state abortion law prohibits
saving a mother’s life.
In addition to not having good cause to issue an
IFR, the VA’s rule violates federal law. Section 106 of
the Veterans Health Care Act of 1992, Pub. L. No.
102-585, 106 Stat. 4943 (1992), explicitly bans the VA
from providing abortions. However, the VA claimed
for the first-time post-Dobbs that Section 106 was “ef-
fectively overt[aken]”—a legal standard this Court
has never recognized. According to the VA, Congress’
subsequent passage of the Veterans’ Health Care

19 VA, Reproductive Health Services, 87 Fed. Reg. 55,287, 55,295

(Sept. 9, 2022).
20 Id. at 55,288.
 10
Eligibility Reform Act of 1996 (VHCERA), which
amended the 1992 Act, silently eliminated Section
106 by implication without any reference to abortion
or that it was repealing Section 106.21 DOJ OLC rub-
berstamped this theory in a post-Dobbs memo issued
after the VA issued its IFR.22
Under DOJ’s and the VA’s new theory, the VA can
provide abortions prohibited under state law. This
theory run afoul of the Assimilative Crimes Act,
which clarifies that state criminal laws (including
state laws prohibiting abortion and regulating the
practice of medicine) apply to actions within a federal
government building, which includes VA hospitals.
18 U.S.C. 13(a). DOJ OLC issued another post-Dobbs
opinion claiming this law likewise provides no bar-
rier to the VA.23
V. Turning Taxpayer Dollars into Abortion
Funds
The Biden administration is seeking to use tax-
payer dollars to fund abortion.
The Hyde Amendment, a yearly appropriations
rider since 1976, states “none of the funds appropri-
ated in this Act, and none of the funds in any trust
fund to which funds are appropriated in this Act,

21 Public Law 104–262, 10 Stat. 3177.

22 Intergovernmental Immunity for the Dep’t of Veterans Affs. &
Its Emps. When Providing Certain Abortion Servs., 46 Op. O.L.C.
___, slip op. at 7–8 (Sept. 21, 2022), https://perma.cc/7TA2-HBES.
23 Application of the Assimilative Crimes Act to Conduct of Fed. Emps.

Authorized by Fed. L., 46 Op. O.L.C. ___ , slip op. at 1 (Aug. 12,
2022), https://perma.cc/HR9Q-T5CF.
 11
shall be expended for any abortion.”24
As a senator President Biden supported the Hyde
Amendment, telling a concerned constituent in 1994
that “those of us who are opposed to abortions should
not be compelled to pay for them.”25 Nevertheless, as
President, Biden has flipped: he now claims that tax-
payer dollars can and should be used to fund abortion
travel and abortion counseling.
Three days after Dobbs, the Office of Personnel
Management (OPM) issued guidance stating that
paid sick leave for federal workers covers absences
for necessary travel, including longer distances out of
state, to obtain medical examinations or treat-
ments.26 While the guidance did not mention abor-
tion specifically, its timing and a subsequent White
House Fact Sheet confirmed the guidance was in-
tended to authorize the use of taxpayer funded sick
leave for abortion travel.27

24 Hyde Amendment, Consolidated Appropriations Act, 2023,

Pub. L. No. 117-328, Div. H., Tit. V, §§ 507(a) (Dec. 29, 2022), 136
Stat. 4908.
25 Letter from Sen. Joseph R. Biden, Jr., to Michael Gregg (April

7, 1994), available at https://www.documentcloud.org/docu-

ments/6127592-biden94letter.html.
26 OPM, Availability of Sick Leave for Travel to Access Medical

Care (June 27, 2022), https://www.opm.gov/policy-data-over-

sight/pay-leave/leave-administration/fact-sheets/sick-leave-
faqs.pdf; see also Letter from Sen. Mark Rubio to OPM (July 5,
2022), https://www.rubio.senate.gov/rubio-urges-biden-admin-
istration-to-address-potential-hyde-amendment-violations-re-
garding-abortion-travel/ (stating that paid sick leave for abortion
would violate the Hyde Amendment, and asking for clarification
that the policy does not cover travel for abortion).
27 White House, FACT SHEET: President Biden to Sign Execu-

tive Order Protecting Access to Reproductive Health Care

 12
A few months later, the DOJ OLC again issued a
post-Dobbs opinion approving of the administration’s
novel interpretation.28
The Department of Defense announced that, de-
spite statutory prohibition to fund abortion, 10
U.S.C. 1093, the Department would transport service
members to obtain abortions and use federal military
funds so its doctors could obtain a license to perform
abortions.29
Less than a week after Dobbs, HHS announced
nearly $3 million in new Title X family planning
grants to “increase training and technical assistance
to address the challenges that the recent Supreme
Court decision may have on their Title X Family
planning service delivery.”30 Title X is a federal pro-
gram that funds state and private health care organ-
izations offering voluntary family planning services.
Within the program, Congress explicitly stated no
funds can “be used in programs where abortion is a
method of family planning.” Public Health Services
Act, 42 U.S.C. 300a-6. Nevertheless, as touted in the
White House’s Fact Sheet on the 51st Anniversary of
Roe v. Wade,31 HHS awarded $253 million in 2022 to

Services (July 8, 2022), https://perma.cc/NHE6-D5J9.

28 Application of the Hyde Amend. to the Provision of Transp. for

Women Seeking Abortions, 46 Op. O.L.C. ___ (Sept. 27, 2022),

https://perma.cc/QTQ3-TBT6.
29 Mem. from Sec’y of Def. on Ensuring Access to Reproductive

Healthcare (Oct. 20, 2022), https://perma.cc/R4PY-R2AS.

30 Press Release, HHS, HHS Announces New Grants to Bolster

Family Planner Provider Training (June 30, 2022),

https://www.hhs.gov/about/news/2022/06/30/hhs-announces-
new-grants-to-bolster-family-planner-provider-training.html.
31 White House, FACT SHEET: White House Task Force on
 13
Title X clinics that provide abortion, counsel in favor
of abortion, refer for abortion, and fail to physically
and financially separate its abortion services from
federally funded family planning services.32 Indeed,
under a 2021 HHS rule, Title X providers must refer
and counsel women for abortion, even when abortion
is prohibited under state law.33
In March 2023, HHS cut off Title X funding to
clinics in Oklahoma and Tennessee because they do
not provide abortion counseling.34 HHS ignored its
obligations under the Weldon Amendment, which
prohibits HHS (among others) from discriminating

Reproductive Healthcare Access Announces New Actions and

Marks the 51st Anniversary of Roe v. Wade (Jan. 22, 2024),
https://www.whitehouse.gov/briefing-room/statements-re-
leases/2024/01/22/fact-sheet-white-house-task-force-on-repro-
ductive-healthcare-access-announces-new-actions-and-marks-
the-51st-anniversary-of-roe-v-wade/.
32 HHS, OASH, Office of Population Affairs, Title X Family

Planning Program, https://perma.cc/K9CD-MAAW; see also

Press Release, HHS, HHS Awards $256.6 Million to Expand and
Restore Access to Equitable and Affordable Title X Family Plan-
ning Services Nationwide (Mar. 30, 2022),
https://perma.cc/LM9A-NFPU; HHS, Ensuring Access to Equita-
ble, Affordable, Client-Centered, Quality Family Planning Ser-
vices, 86 Fed. Reg. 56,144, 56,145 (Oct. 7, 2021) (removing phys-
ical and financial separation requirement for abortion and feder-
ally funded family planning services).
33 HHS, Ensuring Access to Equitable, Affordable, Client-Cen-

tered, Quality Family Planning Services, 86 Fed. Reg. 56,144,

(Oct. 7, 2021).
34 Letter from HHS Office of the Assistant Sec’y for Health to

Tenn. Dept. of Health, Re: Decision not to fund continuation

award (March 20, 2023), https://perma.cc/UV9A-E39K; Federal
Government Deems Oklahoma’s Title X Program Non-Compliant:
OSDH Responds, News on 6 (May 25, 2023),
https://perma.cc/DMB4-XAQT.
 14
against funding recipients “on the basis that the
health care entity does not provide, pay for, provide
coverage of, or refer for abortions.” Consolidated Ap-
propriations Act of 2010, Pub. L. No. 111-117, 123
Stat. 3034 (2009).
In April 2023, the Biden administration an-
nounced a new HHS Notice of Funding Opportunity
to “establish a safe and secure national hotline” to
provide information about abortion to Title X pa-
tients, all on the taxpayer’s dime.35
VI.Turning health privacy laws into shields
from law enforcement.
HHS is seeking to use health information privacy
protections to prohibit enforcement of state abortion
laws. Citing “concerns” about Dobbs and state pro-
life laws, HHS issued a proposed rule36 in April 2023
that would create special privacy rights for abortion
under the Health Insurance Portability and Account-
ability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110
Stat. 1936 (1996). HHS seeks to block disclosure and
the use of “reproductive healthcare information” in
federal or state civil or criminal investigations or le-
gal proceedings, even when a court order otherwise
approves the release or use of the information. This
rule will functionally protect abortions prohibited by

35 White House, FACT SHEET: Biden-⁠Harris Administration An-

nounces Actions to Protect Patient Privacy at the Third Meeting
of the Task Force on Reproductive Healthcare Access (Apr. 12,
2023), https://www.whitehouse.gov/briefing-room/statements-re-
leases/2023/04/12/fact-sheet-biden-harris-administration-an-
nounces-actions-to-protect-patient-privacy-at-the-third-meeting-
of-the-task-force-on-reproductive-healthcare-access/.
36 HHS, HIPAA Privacy Rule to Support Reproductive Health

Care Privacy, 88 Fed. Reg. 23,506, 23,507 (Apr. 17, 2023).

 15
state law by prohibiting access to evidence necessary
for states to enforce laws protecting unborn children.
HHS explains it is modifying privacy standards
related to requests for the use or disclosure of abor-
tion information because of the “potential” for such
uses or disclosures “to undermine access to and the
quality of health care generally.” HHS explains it is
concerned about “criminal, civil, or administrative
investigations or proceedings that chill access to law-
ful health care and full communication between indi-
viduals and health care providers.” Yet fails to
demonstrate the normal stringent privacy standards
for disclosure of health information are insufficient
when it comes to abortion.
HHS’s rule goes farther and explicitly defines un-
born children as “non-persons” removing their pro-
tections under HIPAA. The single statute HHS cites
in support states, “Nothing in this section shall be
construed to affirm, deny, expand, or contract any le-
gal status or legal right applicable to any member of
the species homo sapiens at any point prior to being
‘born alive.’” 1 U.S.C. 8. Indeed, the Genetic Infor-
mation Nondiscrimination Act of 2008 (GINA), Pub.
L. 110–233, 122 Stat. 881, which amended HIPAA,
repeatedly states that privacy protections for infor-
mation of an “individual or family member” extend to
information of “any fetus carried by such pregnant
woman” and “any embryo,” 26 U.S.C. 9802(g); 29
U.S.C. 1182(f); 42 U.S.C. 300gg–4(f), 300gg–53(f), 42
U.S.C. 1395ss(x)(4);42 U.S.C. 2000ff-8(b).
This is yet another attempt to sidestep Dobbs and
undermine state abortion laws. Secretary Becerra ex-
plained that this rule is in response to President
Biden’s direction after Dobbs, where he “call[ed] on
 16
HHS to take action to meet this moment and we have
wasted no time in doing so.”37

CONCLUSION

The Court should XXX.

Respectfully submitted.
RACHEL N. MORRISON
Counsel of Record
ETHICS & PUBLIC POLICY CENTER
1730 M Street, N.W., Suite 910
Washington, D.C. 20036
(202) 682-1200
[email protected]

FEBRUARY 2024 Counsel for Amicus Curiae

37 Press Release, HHS, HHS Proposes Measures to Bolster Pa-

tient-Provider Confidentiality Around Reproductive Health Care
(Apr. 12, 2023), https://www.hhs.gov/about/news/2023/04/12/hhs-
proposes-measures-bolster-patient-provider-confidentiality-
around-reproductive-health-care.html.