United States Court of Appeals 

for the Fifth Circuit ____________ No. 23-10246 ____________ State of Texas; American Association of Pro-Life 

Obstetricians & Gynecologists; Christian Medical & 

Dental Associations, 

PlaintiffsAppellees, 

versus

Xavier Becerra; United States Department of Health 

and Human Services; Centers for Medicare and 

Medicaid Services; Karen L. Tritz; David R. Wright, 

DefendantsAppellants. ______________________________ Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 5:22-CV-185 ______________________________ Before Southwick, Engelhardt, and Wilson, Circuit Judges. Kurt D. Engelhardt, Circuit Judge: 

The Emergency Medical Treatment and Active Labor Act of 1986 

(EMTALA), 42 U.S.C. § 1395dd, requires hospitals with emergency departments that receive Medicare reimbursement to provide a medical screening and, if an emergency medical condition exists, necessary stabilizing treatment or an appropriate transfer irrespective of the individuals ability to pay. 

EMTALA was enacted to combat patient dumping, the practice of some 

United States Court of Appeals 

Fifth Circuit 

FILED 

January 2, 2024 

Lyle W. Cayce 

Clerk 

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2 

hospitals turning away or transferring indigent patients without evaluation or 

treatment. 

The State of Texas, along with two medical associations with members located in Texas (Texas plaintiffs), sued the Department of Health 

and Human Services (HHS), HHS Secretary Xavier Becerra, the Centers 

for Medicare and Medicaid Services (CMS), the Director of the Survey 

and Operations Group for CMS, and the Director of the Quality Safety and 

Oversight Group for CMS (collectively HHS), challenging HHSs guidance on EMTALAs requirement that physicians must provide an abortion 

when that care is the necessary stabilizing treatment for an emergency medical condition. The Texas plaintiffs alleged that the guidance mandates providers to perform elective abortions in excess of HHSs authority and contrary to state law and sought to enjoin its enforcement. The district court enjoined the guidances interpretation of EMTALA within Texas or against 

any member of a plaintiff organization. HHS appealed. For the following reasons, we AFFIRM. I. 

A. 

 In 1986, Congress enacted EMTALA to ensure public access to emergency services regardless of a patients ability to pay. 42 U.S.C. § 1395dd(a). 

EMTALA applies to every hospital that has an emergency department and 

participates in Medicare. Id. §§ 1395dd(a), (e)(2), 1395cc(a)(1)(I); see also 42 

C.F.R. § 489.24(b)(4). To receive federal funding, hospitals must agree to 

comply with EMTALA. 42 U.S.C. § 1395cc(a)(1)(I)(i). If a hospital fails to 

comply substantially with Medicares conditions of participation, CMS

the component of HHS that administers Medicaremay seek to terminate 

that hospitals participation in the Medicare program. Id. § 1395cc(b)(2)(A); 

see also 42 U.S.C. § 1395dd(d)(1). 

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There are three stages to EMTALA: (1) screening; (2) stabilizing; and 

(3) transfer. When an individual presents to a Medicare-participating emergency department and requests examination or treatment, the hospital must 

provide an appropriate medical screening examination to determine 

whether or not an emergency medical condition exists. 42 U.S.C. § 

1395dd(a). An emergency medical condition means a medical condition 

manifesting itself by acute symptoms of sufficient severity (including severe 

pain) such that the absence of immediate medical attention could reasonably 

be expected to result in the following: 

(i) placing the health of the individual (or, with respect to a 

pregnant woman, the health of the woman or her unborn child) 

in serious jeopardy, 

(ii) serious impairment to bodily functions, or 

(iii) serious dysfunction of any bodily organ or part. 

Id. § 1395dd(e)(1)(A). In the case of a pregnant woman who is having contractions, an emergency medical condition includes: 

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or 

(ii) that transfer may pose a threat to the health or safety of the 

woman or the unborn child. 

Id. § 1395dd(e)(1)(B). 

 If the hospital determines that a patient has an emergency medical 

condition, the hospital must offer patients [n]ecessary stabilizing treatment[s] or a transfer of the individual to another medical facility. Id. § 

1395dd(b); see also 42 C.F.R. § 489.24(d)(e). The term to stabilize means 

to provide such medical treatment of the condition as may be necessary to 

assure, within reasonable medical probability, that no material deterioration 

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of the condition is likely to result from or occur during the transfer of the 

individual from a facility, or, with respect to an emergency medical condition 

[of a pregnant woman who is having contractions], to deliver (including the 

placenta). 42 U.S.C. § 1395dd(e)(3)(A); see also 42 U.S.C. § 

1395dd(e)(3)(B). A hospital is deemed to meet the [n]ecessary stabilizing 

treatment requirements if the hospital offers and informs of examination 

and treatment but the individual refuses to consent to the examination and 

treatment. 42 U.S.C. § 1395dd(b)(2). The term transfer means to move 

an individual outside a hospitals facilities at the direction of any person 

employed by . . . the hospital. Id. § 1395dd(e)(4). Transfers occur if the patient is stabilized. Id. § 1395dd(c)(1). If a patient has not been stabilized, a 

transfer may only occur in certain circumstances and if the transfer is appropriate. See id. § 1395dd(c)(1)(A)(i)(iii), (c)(1)(B), (c)(2).1 _____________________ 1

 If an individual at a hospital has not been stabilized, a transfer may only occur in 

three circumstances. First, a hospital may transfer if the individual, having been informed 

of the hospitals obligations to provide medical treatment and the risk of transfer, in writing 

requests transfer to another medical facility. 42 U.S.C. § 1395dd(c)(1)(A)(i). Second, a 

physician certifies that the medical benefits reasonably expected at another medical facility 

outweigh risks to the individual and, in the case of labor, to the unborn child from effecting 

the transfer. Id. § 1395dd(c)(1)(A)(ii). And, last, if a physician was not physically present 

at the time of transfer, a qualified medical person has signed a certification after the 

physician consulted with that person, determining that the medical benefits reasonably 

expected at another medical facility outweigh risks to the individual, and that physician 

subsequently countersigns the certification. Id. § 1395dd(c)(1)(A)(iii). Transfers under 

Section 1395dd(c)(1)(A)(i)(iii) must be appropriate. See id. § 1395dd(c)(1)(B). With 

respect to a pregnant woman, an appropriate transfer is a transfer in which the 

transferring hospital provides the medical treatment within its capacity which minimizes 

the risks to the individuals health and, in the case of a woman in labor, the health of the 

unborn child. Id. § 1395dd(c)(2)(A). The receiving facility must have available space, 

qualified personnel to treat the individual, have agreed to accept the transfer, and have all 

medical records related to the emergency condition for which the individual has presented. 

Id. § 1395dd(c)(2)(B)(C). The transfer must be effected through qualified personnel and 

transportation equipment. Id. § 1395dd(c)(2)(D). 

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 EMTALA does not address any specific medical procedures or treatments besides the requirement to deliver (including the placenta). Id. § 

1395dd(e)(3)(A). Moreover, EMTALA contains a savings clause that states 

its limited preemptive effect: The provisions of this section do not preempt 

any State or local law requirement, except to the extent that the requirement 

directly conflicts with a requirement of this section. Id. § 1395dd(f). 

B. 

On June 24, 2022, the United States Supreme Court issued its decision in Dobbs v. Jackson Womens Health Organization, 142 S. Ct. 2228, 2279 

(2022), holding that the Constitution does not confer a right to abortion 

and that the authority to regulate abortion must be returned to the people 

and their elected representatives. In the wake of Dobbs, so-called trigger 

laws sprung into effect, meaning laws that were enacted in anticipation of 

abortions return to state control automatically went into effect. The Texas 

Human Life Protection Act (HLPA) is such a law. Dobbs triggered 

HLPAs 30-day clock and the law went into effect on August 25, 2022. The 

HLPA prohibits abortions unless the pregnancy places the female at risk of 

death or poses a serious risk of substantial impairment of a major bodily function. Tex. Health & Safety Code § 170A.002(b)(2). In such circumstances, the person performing, inducing, or attempting the abortion 

must be a licensed physician exercising reasonable medical judgment by 

providing the best opportunity for the unborn child to survive unless, in the 

physicians reasonable medical judgment, it would pose a greater risk of the 

pregnant females death or a serious risk of substantial impairment of a major 

bodily function of the pregnant female. Id. § 170.002(b)(1), (3).2 _____________________ 2

 Under the HLPA, abortion means the act of using or prescribing an 

instrument, a drug, a medicine, or any other substance, device, or means with the intent to 

cause the death of an unborn child of a woman known to be pregnant. Tex. Health & 

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 Two weeks after Dobbs, on July 11, 2022, CMS issued Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are 

Experiencing Pregnancy Loss (the Guidance)3 and a supporting letter 

(the Letter)4 to state healthcare-agency directors, reminding hospitals of 

their existing and continuing obligations under EMTALA in light of new 

state laws prohibiting or restricting access to abortion. Guidance at 12. The 

Guidance is at the forefront of this appeal. Most notably, the Guidance states: 

If a physician believes that a pregnant patient presenting at 

an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the 

stabilizing treatment necessary to resolve that condition, the 

physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of 

the pregnant personor draws the exception more narrowly 

than EMTALAs emergency medical condition definition

that state law is preempted. Id. at 1 (emphasis in original). According to the Guidance, [e]mergency 

medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent _____________________ Safety Code § 245.002(1); see also Tex. Health & Safety Code § 170A.001(1) 

(abortion is assigned the meaning under Section 245.002). The term does not include 

birth control devices or oral contraceptives. Tex. Health & Safety Code § 

245.002(1). And [a]n act is not an abortion if the act is done with the intent to: (A) save 

the life or preserve the health of an unborn child; (B) remove a dead, unborn child whose 

death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy. Id. § 

245.002(1)(A)(C). 

3

 Ctrs. for Medicare & Medicaid Servs., Reinforcement of EMTALA Obligations 

specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (QSO-21-22-HospitalsUPDATED JULY 2022) (July 11, 2022). 

4

 Dept of Health & Human Servs., The Secretary of Health & Human Servs., 

Letter on Enforcement of EMTALA (July 11, 2022). 

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hypertensive disorders, such as preeclampsia with severe features. Id. The 

Guidance notes that [t]he course of treatment necessary to stabilize such 

emergency medical conditions is also under the purview of the physician or 

other qualified medical personnel. Id. at 4. The Guidances enforcement 

provision warns hospitals of penalties for physicians who refuse to provide 

necessary stabilizing care for an individual presenting with an emergency 

medical condition that requires such stabilizing treatment, or an appropriate 

transfer. Id. at 5. It also informs that [a]ny state actions against a physician 

who provides an abortion in order to stabilize an emergency medical condition in a pregnant individual presenting to the hospital would be preempted 

by the federal EMTALA statute due to the direct conflict with the stabilized provision of the statute. Id. Endorsed by HHS Secretary Becerra, the 

Letter reenforces the same message. See Letter at 12. 

C. 

On July 14, 2022, Texas filed a complaint in the Northern District of 

Texas challenging the Guidance pursuant to, inter alia, the Administrative 

Procedure Act (APA) and Medicare Act. The crux of the complaint is that 

EMTALA does not authorize the federal government to compel healthcare 

providers to perform abortions, and thus, the Guidance is unlawful and must 

be set aside. Two weeks later, on July 28, 2022, Texas amended the complaint, adding as co-plaintiffs the American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG) and Christian Medical & Dental Associations (CMDA).5

 _____________________ 5

 AAPLOG is an organization of 6,000 pro-life physicians, with 300 members in 

Texas. CMDA is a nonprofit organization of Christian physicians, dentists, and allied 

healthcare professionals, with over 12,000 members nationwide and 1,237 members in 

Texas, of whom 607 are practicing or retired physicians and 35 are OB/GYNs. Both groups 

oppose elective abortions on medical, ethical, and religious grounds. 

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Thereafter, on August 3, 2022, the Texas plaintiffs moved for a temporary restraining order and a preliminary injunction. After a hearing on the 

matter, the district court issued an order granting a preliminary injunction 

and simultaneously denying HHSs motion to dismiss, finding the Texas 

plaintiffs had requisite standing and thus the district court did not lack subject matter jurisdiction. Texas v. Becerra, 623 F. Supp. 3d 696 (N.D. Tex. 

2022). As an initial matter, and addressing the claims raised in the Rule 

12(b)(1) motion, the district court concluded that the Texas plaintiffs had Article III standing to raise their claims. Id. at 70919. The district court also 

determined that the Guidance constituted a final agency action. Id. at 720

24. As determined by the district court, the Guidance is neither subject to 

further agency review nor a mere intermediate step in a multi-stage administrative process. Id. at 72021. Rather, it binds HHS and its staff to a particular 

legal position. Id. at 72124. On the merits, the district court concluded that 

the Texas plaintiffs were entitled to preliminary injunctive relief because, applying Chevron,

6

 the Guidance exceeds statutory authority. Id. at 72433. 

HHS was also required to promulgate the Guidance through notice and comment. Id. at 73335. Having found a likelihood of success on the merits, the 

district court determined that the other preliminary injunction factors were 

satisfied. Id. at 73538. Tailoring the injunction to the parties, issues, and evidence before it, the district court enjoined HHS from enforcing the Guidance and Letter within the State of Texas or against the Texas plaintiffs. Id.

at 73839. 

On September 1, 2022, HHS moved to clarify the district courts injunction. According to HHS, it was unclear whether they could continue to _____________________ 6 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The 

district court applied Chevron but noted that, even if Chevron were not to apply, its 

conclusions here would stand on even firmer ground. Texas, 623 F. Supp. 3d at 724 n.11. 

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enforce the Guidances interpretation of EMTALA in Texas and against the 

plaintiffs when an abortion would be permitted under state law. HHS filed its 

first notice of appeal before the district court ruled on the motion.7 Determining it had jurisdiction to decide the motion to clarify, the district court denied 

HHSs motion. Texas v. Becerra, No. 5:22-CV-185-H, 2022 WL 18034483, at 

*13 (N.D. Tex. Nov. 15, 2022). 

On December 20, 2022, the district court entered a partial final judgment, converting the preliminary injunction into a permanent injunction. 

The parties then filed an unopposed motion to correct judgment under Federal Rule of Civil Procedure 60, noting that the judgment should include the 

language from the preliminary injunction in its judgment. The district court 

entered an amended judgment, stayed the Texas plaintiffs remaining claims 

pending resolution of any appeal from this judgment and administratively 

closed the case. Texas v. Becerra, No. 5:22-CV-185-H, 2023 WL 2467217, at 

*1 (N.D. Tex. Jan. 13, 2023). The pertinent language from the permanent 

injunction for the purpose of this appeal is: 

(1) The defendants may not enforce the Guidance and Letters 

interpretation that Texas abortion laws are preempted by EMTALA; and 

(2) The defendants may not enforce the Guidance and Letters 

interpretation of EMTALAboth as to when an abortion is required and EMTALAs effect on state laws governing abortionwithin the State of Texas or against AAPLOGs members and CMDAs members. 

_____________________ 7

 The first notice of appeal was docketed as No. 22-11037. 

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Id. HHS moved to stay the first notice of appeal, and later, dismissed that 

appeal. Texas v. Becerra, No. 22-11037, 2023 WL 2366605 (5th Cir. Jan. 26, 

2023). This appeal of the amended judgment followed. 

II. 

We review the trial courts granting . . . of [a] permanent injunction 

for abuse of discretion. Peaches Ent. Corp. v. Ent. Repertoire Assocs., Inc., 62 

F.3d 690, 693 (5th Cir. 1995) (citation omitted). We likewise review de novo

the scope of an injunction. Texas v. Equal Emp. Opportunity Commn, 933 F.3d 

433, 450 (5th Cir. 2019) (citation omitted) [hereinafter EEOC]. Determinations on jurisdiction are reviewed de novo. Id. at 441 (footnote omitted). 

III. 

HHS does not raise standing on appeal. Pertinent to the question of 

jurisdiction on appeal, however, is (A.) whether the Guidance is a final 

agency action subject to the courts review.8 The remaining issues on appeal 

include (B.) whether the Guidance is consistent with EMTALA, (C.) 

whether the district court erred in concluding that the Guidance was required 

to undergo notice and comment under the Medicare Act, and (D.) whether 

the injunction is overbroad. Each issue will be analyzed in turn. 

A. 

The APA provides for judicial review of a final agency action. 5 

U.S.C. § 704. Two conditions must be met for agency action to be final. 

First, the action must mark the consummation of the agencys decisionmaking process. Bennett v. Spear, 520 U.S. 154, 17778 (1997) (citation 

omitted). And second, the action must be one by which rights or _____________________ 8 EEOC, 933 F.3d at 440 n.8 (whether an agency action is final is a jurisdictional 

issue, not a merits question (citation omitted)). 

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obligations have been determined, or from which legal consequences will 

flow. Id. at 178 (citation omitted). The Supreme Court takes a pragmatic 

approach, viewing the APA finality requirement as flexible. EEOC, 933 

F.3d at 441 (quoting U.S. Army Corps of Engrs v. Hawkes Co., 578 U.S. 590, 

599 (2016); and then quoting Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 

2011)). 

HHS does not raise the first prong of the Bennett-inquiry. Reviewability vel non of the Guidance thus turns on the second Bennett prong

whether rights or obligations have been determined by it, or whether legal 

consequences will flow from it. EEOC, 933 F.3d at 441 (quoting Bennett, 

520 U.S. at 178). 

1. 

Courts have consistently held that an agencys guidance documents 

binding it and its staff to a legal position produce legal consequences or determine rights and obligations, thus meeting the second prong of Bennett. 

EEOC, 933 F.3d at 441. Whether an action binds the agency is evident if it 

either appears on its face to be binding[] or is applied by the agency in a way 

that indicates it is binding. Id. (alteration in original) (quoting Texas v. 

United States, 809 F.3d 134, 171 (5th Cir. 2015)); see also Ciba-Geigy Corp. v. 

U.S. Envt Prot. Agency, 801 F.2d 430, 436 (D.C. Cir. 1986) (holding that an 

action is final once the agency makes clear that it expects regulated entities 

to alter their primary conduct to conform to [the agencys] position). The 

governing case on the matter is Texas v. Equal Employment Opportunity Commission, 933 F.3d 433 (5th Cir. 2019). EEOC involved the Equal Employment 

Opportunity Commissions (EEOC) enforcement guidance that claimed 

blanket bans on hiring individuals with criminal records were violations of 

Title VII. Id. at 43738. The court held that the guidance bound the EEOC 

to a specific legal position to such a degree that noncompliance with the 

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guidance naturally risked legal consequences for employers. Id. at 446. EEOC

directs courts to determine whether agency action binds the agency by looking for (1) mandatory language, (2) actions that restrict the agencys discretion to adopt a different view of the law, and (3) the creation of safe harbors 

from legal consequences. Id. at 44143. In some cases, the mandatory language of a document alone can be sufficient to render it binding. Id. at 442 

(quoting Gen. Elec. Co. v. Envt Prot. Agency, 290 F.3d 377, 383 (D.C. Cir. 

2002)); see also Iowa League of Cities v. Envt Prot. Agency, 711 F.3d 844, 864 

(8th Cir. 2013) (holding that language expressing an agencys position that 

speaks in mandatory terms is the type of language we have viewed as binding). 

The district court found the Guidance contains all three. Texas, 623 

F. Supp. 3d at 72124. The Texas plaintiffs point to mandatory language 

throughout the Guidance for its binding effect, including the title and body 

of the text. 

In this case, the mandatory language of the Guidance renders it binding. The title itself imposes obligations. Guidance at 1. The Guidance 

states that hospitals and physicians must provide an abortion as a stabilizing treatment irrespective of any state laws or mandates. Id. at 1, 45. It is 

a part of a physicians professional and legal duty to provide such treatment to a patient who presents under EMTALA. Id. at 1. The Guidance further states that physicians cannot be shielded from liability for erroneously 

complying with state laws that prohibit services such as abortion or transfer 

of a patient for an abortion when the original hospital does not have the capacity to provide such services. Id. at 4. Moreover, the Guidance threatens 

fines and loss of federal funding for noncompliance. Id. at 5. The Letter repeats the same message as the Guidance. Letter at 12. The Letter also warns 

that the enforcement of EMTALA is a complaint driven process and directs 

that violations of EMTALA should be initiated by a complaint. Id. at 2. The 

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Letter states that violations of EMTALA may lead to civil penalties, including a physicians exclusion from the Medicare and State health care programs. Id. The language as to how EMTALA will be enforced effectively 

withdraws the agencys discretion to adopt a different view of the law. 

EEOC, 933 F.3d at 442. Private parties can also rely on the Guidance as a 

norm or safe harbor to avoid liability. Guidance at 56; see also EEOC, 933 

F.3d at 44344 (The Guidance is binding as a practical matter because 

private parties can rely on it as a norm or safe harbor by which to shape their 

actions. (quoting Cohen v. United States, 578 F.3d 1, 9 (D.C. Cir. 2009))); 

Gen. Elec., 290 F.3d at 383 (private parties can rely on it as a norm or safe 

harbor by which to shape their actions). 

HHSs reliance on Luminant Generation Co., L.L.C. v. U.S. Environmental Protection Agency, 757 F.3d 439 (5th Cir. 2014), for the notion that the 

Guidance has no independent legal force, is distinguishable from EEOC. Luminant involved notice of violations sent by the Environmental Protection 

Agency (EPA) informing the plaintiff power plant of violations under the 

Clean Air Act. Id. at 440. It was the Clean Air Actnot the EPAs notice of 

violations to the plaintiff power plantthat set forth the plaintiffs rights and 

obligations. Id. at 442. EEOC distinguished its guidance from the notice of 

violations in Luminant, holding that the EPA notices merely expressed the 

agencys opinion about the legality of the plaintiffs conduct; it did not . . . 

commit the administrative agency to a specific course of action should the 

plaintiff fail to comply with the agencys view. EEOC, 933 F.3d at 445 (citation and quotation marks omitted). The key, according to EEOC, is that the 

guidance dictates how EEOC must assess claims of Title VII disparate-impact liability targeting employers with felon-hiring policies. The [g]uidance 

does not merely comment on a single employers practices; it tells EEOC 

staff and all employers what sort of policy is unlawful. Id. 

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HHS claims that the Guidance does not dictate how providers exercise their professional judgment regarding the proper stabilizing care, and it 

does not dictate any particular result. But as we have explained, whether 

the agency action binds the agency indicates whether legal consequences flow 

from that action. Id. The Guidance is rife with language binding HHS. It 

instructs hospitals and physicians to provide abortions in certain cases irrespective of state law with clear legal consequences should a physician or hospital violate. Guidance at 45. The Letter repeats the same message. Letter 

at 12. The language effectively withdraws HHSs discretion to adopt a different view of the law. EEOC, 933 F.3d at 442. The Guidance also establishes safe harbors. Guidance at 56. Legal consequences thus flow from the 

Guidance, and it determines rights and obligations. 

2. 

Under the second Bennett prong, agency action is not final if it 

merely restate[s] a statutory requirement or merely reiterate[s] what has 

already been established. Natl Pork Prods. Council v. U.S. Envt Prot. 

Agency, 635 F.3d 738, 756 (5th Cir. 2011) (citations omitted). To constitute a 

final agency action, rights, obligations, or legal consequences created by a 

challenged action must be new. State v. Rettig, 987 F.3d 518, 529 (5th Cir. 

2021) (citations omitted).

HHS argues that the Guidance is not new. In support, HHS submits two prior guidance documents: (1) a September 2021 guidance issued by 

CMS (CMS guidance);9 and a (2) September 2021 guidance issued by _____________________ 9

 Ctrs. for Medicare & Medicaid Servs., Reinforcement of EMTALA Obligations 

specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (Sept. 17, 2021) 

(Revised Oct. 3, 2022), available at https://www.cms.gov/files/document/qso-21-22-

hospital-revised.pdf. 

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HHSs Office for Civil Rights (OCR) (OCR guidance).10 These documents hardly qualify the Guidance in this case as not new. First, the September 2021 guidance by CMS does not mention abortion. This document 

directs hospitals to provide stabilizing treatment for persons who present to 

the emergency department, including pregnant women. CMS guidance at 1. 

So does EMTALA. See 42 U.S.C. § 1395dd(a), (e)(1)(A). And while the September 2021 CMS guidance repeats similar language as the Guidance in this 

case, it does not impose any obligations like the Guidance in this case does 

post-Dobbs. The September 2021 CMS guidance falls under National Pork 

Producers definition of an agency action that does not make a substantive 

change because it merely restate[s] EMTALAs prohibition on denying 

an emergency medical examination to determine whether an emergency 

medical condition exists for pregnant women. Natl Pork Prods., 635 F.3d at 

756; compare September 2021 CMS guidance at 1, with 42 U.S.C. § 

1395dd(a), (e)(1). 

Second, the September 2021 OCR guidance discusses the nondiscrimination protections under the Church Amendments, 42 U.S.C. § 300a-7. 

OCR guidance at 1. The Church Amendments protect health care personnel 

from discrimination related to their employment or staff privileges if they refuse to perform or assist in the lawful performance of an abortion. Id. The 

Church Amendments define lawful abortions as those that are lawful under federal law. Id. at 2. By citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879 (1992), the OCR guidance relies on law that 

has since been overruled by the Supreme Court. See Dobbs, 142 S. Ct. at 2284. 

Moreover, the OCR guidances reference to [l]awful abortions . . . in order _____________________ 10 U.S. Dept of Health & Human Servs., Guidance on Nondiscrimination Protections 

under the Church Amendments for Health Care Personnel (Sept. 17, 2021), available at 

https://www.hhs.gov/sites/default/files/church-guidance.pdf. 

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to stabilize a patient when required under [EMTALA] is framed in the preDobbs context. OCR guidance at 2. 

The Texas plaintiffs claim that the Guidance is new for good reasons. HHS even admitted before the district court at the hearing on the preliminary injunction that it hasnt issued a [G]uidance document specific like 

this one . . . because there wasnt a need for it. Everybody understood that 

this is what was required. Tr. of Preliminary Injunction Hearing at 125. At 

oral argument, HHS sought to clarify that, while there are new factual circumstances, the obligations on hospitals remain the same regarding abortion. 

Oral Argument Recording at 2:523:19; 13:1525; 13:4956. We disagree with 

HHS. The new ingredient here is Dobbs, which caused a sea change in the 

law. Put simply, the Guidance sets out HHSs legal positionfor the first 

timeregarding how EMTALA operates post-Dobbs. The Guidance is new 

policy; it does not merely restate EMTALAs requirements. Legal consequences flow from the Guidance, and it determines rights and obligations. 

The Guidance therefore constitutes final agency action. 

B. 

The APA requires courts to hold unlawful and set aside agency action that is in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right. 5 U.S.C. § 706(2)(C). The district court applied 

Chevron, finding that the Guidance exceeds HHSs statutory authority and is 

not a permissible construction of EMTALA. HHS does not invoke Chevron

but claims that Congress has spoken that EMTALA mandates abortion care 

when that care is the necessary stabilizing treatment. See Oral Argument 

Record at 16:2533. HHS claims that EMTALAs stabilizing treatment 

definition is broad and does not exclude any form of medical care. In HHSs 

view, EMTALA mandates whatever a medical provider concludes is medically necessary to stabilize whatever condition is present. Various traditional 

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rules of interpretation, in Texass view, do not support HHSs argument. 

The question here is whether, pursuant to HHSs Guidance on EMTALA, a 

physician must provide an abortion when that care is the necessary stabilizing 

treatment for an emergency medical condition. Employing the traditional 

tools of statutory interpretation, we hold that HHSs Guidance exceeds the 

statutory language.11 1. 

Under EMTALA, if an individual is determined to be experiencing 

an emergency medical condition, see 42 U.S.C § 1395dd(e)(1), Medicareparticipating hospitals must offer such treatment as may be required to stabilize the medical condition. 42 U.S.C. § 1395dd(b)(1). A plain reading 

shows that Congress did not explicitly address whether physicians must provide abortions when they believe it is the necessary stabilizing treatment 

to assure that no material deterioration of the condition is likely to result 

of an individuals emergency medical condition. Id. § 1395dd(b)(1), 

(e)(3)(A). The Supreme Court likewise has not further defined stabilizing 

treatment or medical treatment under EMTALA. Neither party claims 

that EMTALA expressly discusses abortion as a stabilizing treatment. It 

simply is silent regarding abortion. The district court concluded the same. 

Silence does not connote ambiguity, however. [L]egal interpretation [is] 

more than just a linguistic exerciseit includes the use of canons. _____________________ 11 There is no need to go through Chevrons two-step framework when a statute 

unambiguously forecloses an agencys position. BP Am., Inc. v. Fed. Energy Reg. Commn, 52 F.4th 204, 217 n.6 (5th Cir. 2022) (citing Esquivel-Quintana v. Sessions, 581 U.S. 385, 

39798 (2017) (We have no need to resolve whether . . . Chevron receives priority in this 

case because the statute, read in context, unambiguously forecloses the [agencys] 

interpretation.)); see also Am. Hosp. Assoc. v. Becerra, 596 U.S. 724, 739 (2022) (applying 

traditional tools of statutory interpretation to HHSs interpretation). In such cases, we 

follow the statutory command. BP Am., 52 F.4th at 217 n.6. 

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Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts xxvii (2012). 

Considering the statute as a whole, the Medicare Act states that 

[n]othing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of 

medicine or the manner in which medical services are provided. 42 U.S.C. 

§ 1395; see also Scalia & Garner, supra, at 16769 (The text must be 

construed as a whole.). Section 1395 underscores the congressional policy 

against the involvement of federal personnel in medical treatment decisions. United States v. Univ. Hosp., State Univ. of N.Y. at Stony Brook, 729 

F.2d 144, 160 (2d Cir. 1984); cf. Marshall on Behalf of Marshall v. East Carroll 

Parish Hosp. Serv. Dist., 134 F.3d 319, 322 (5th Cir. 1998) (collecting cases) 

([A]n EMTALA appropriate medical screening examination is not judged 

by its proficiency in accurately diagnosing the patients illness, but rather by 

whether it was performed equitably in comparison to other patients with similar symptoms.). Congress expressly prohibits HHS from direct[ing] or 

prohibit[ing] any [particular] kind of treatment or diagnosis in its administration of Medicare. Goodman v. Sullivan, 891 F.2d 449, 451 (2d Cir. 1989) 

(per curiam). Indeed, the purpose of EMTALA is to provide emergency care 

to the uninsured. 42 U.S.C. § 1395dd(a); see also Marshall, 134 F.3d at 322 

(collecting cases) (EMTALA . . . was enacted to prevent patient dumping, 

which is the practice of refusing to treat patients who are unable to pay.). 

EMTALA does not specify stabilizing treatments in general, except 

one: delivery of the unborn child and the placenta. 42 U.S.C. § 

1395dd(e)(3)(A). The inclusion of one stabilizing treatment indicates the others are not mandated. See Texas v. United States, 809 F.3d 134, 182 (5th Cir. 

2015) (the expressio unius est exclusio alterius canonthat is, to include one 

thing implies the exclusion of the othercan be used for addressing questions of statutory interpretation by agencies). A medical provider can 

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nonetheless comply with both EMTALA and state law by offering stabilizing 

treatment in accordance with state law. See 42 U.S.C. § 1395dd(a), (f); see 

also Crosby v. Natl Foreign Trade Council, 530 U.S. 363, 37273 (2000) (holding that a state law is not preempted when compliance with state law does not 

stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress (citation omitted)); Scalia & Garner, supra, at 29094 (discussing the presumption against federal preemption canon, stating that [a] federal statute is presumed to supplement rather 

than displace state law). EMTALA does not mandate any specific type of 

medical treatment, let alone abortion. 

The Texas plaintiffs argument that medical treatment is historically 

subject to police power of the States, not to be superseded unless that was 

the clear and manifest purpose of Congress, is convincing. Medtronic, Inc. v. 

Lohr, 518 U.S. 470, 485 (1996) (citation omitted) ([W]e start with the assumption that the historic police powers of the State were not to be superseded by the Federal Act unless that was the clear and manifest purpose of 

Congress.); see also Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 518 (1992) 

(courts are to construe statutes narrowly due to the presumption against the 

pre-emption of state police power regulations). Congress has not manifested that purpose in EMTALA, or the Medicare Act for that matter. The 

opposite is true: EMTALA does not impose a national standard of care.12

Harry v. Marchant, 291 F.3d 767, 773 (11th Cir. 2022) (EMTALA was not 

intended to establish guidelines for patient care.); Bryan v. Rectors & Visitors _____________________ 12 Amici American College of Emergency Physicians, et al., claim that EMTALA 

installs a minimum standard of care. Brief for Am. College of Emergency Physicians as 

Amici Curiae Supporting HHS, at 1415. Amici note, however, that EMTALA properly 

defers to the medical judgment of the physician(s) responsible for treating the patient . . . 

[and] [t]hat decision-making, in turn, is informed by established clinical guidelines . . . . 

EMTALA does not specify particular treatments. Id. at 16. 

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of Univ. of Va., 95 F.3d 349, 351 (4th Cir. 1996) (Once EMTALA has met 

that purpose of ensuring that a hospital undertakes stabilizing treatment for 

a patient who arrives with an emergency condition, the patients care becomes the legal responsibility of the hospital and the treating physicians.); 

Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995). And circuits recognize that state law, not EMTALA, governs medical malpractice. 

See, e.g., Marshall, 134 F.3d at 32223; Eberhardt, 62 F.3d at 1258; Baber v. 

Hosp. Corp. of Am., 977 F.2d 872, 87980 (4th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C. Cir. 1991). 

In sum, EMTALA does not govern the practice of medicine. This is 

reflected in its purpose, see 42 U.S.C. § 1395dd(a), and the prohibition under 

the Medicare Act from federal agents interfering with the practice of medicine, see 42 U.S.C. § 1395. See, e.g., Marshall, 134 F.3d at 322 (collecting 

cases); Bryan, 95 F.3d at 351; Goodman, 891 F.2d at 451; Stony Brook, 729 

F.2d at 160. While EMTALA directs physicians to stabilize patients once an 

emergency medical condition has been diagnosed, see 42 U.S.C. § 

1395dd(b)(1), the practice of medicine is to be governed by the states. HHSs 

argument that any type of treatment should be provided is outside EMTALAs purview. 

2. 

Most notably, the district court considered EMTALAs preemptive 

effects. EMTALA states: The provisions of this section do not preempt any 

State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section. 42 U.S.C. § 1395dd(f). 

Section 1395dd(f) is an ordinary conflicts-preemption provision. See Hardy v. 

New York City Health & Hosp. Corp., 164 F.3d 789, 795 (2d Cir. 1999). Under 

the conflicts-preemption test, a state statute directly conflicts with federal 

law where (1) it is impossible for a person to comply with both the state law 

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and EMTALA, or (2) where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby, 530 U.S. at 37273 (citation omitted). The Supreme Court 

construe[s] . . . provisions in light of the presumption against the pre-emption of state police power regulations. Cipollone, 505 U.S. at 518. 

First, Texass HLPA law does not directly conflict with EMTALA. 

EMTALA imposes obligations on physicians with respect to both the pregnant woman and her unborn child. See 42 U.S.C. § 1395dd(e)(1)(A)(i). This 

is a dual requirement. The Texas HLPA provides for abortion care where 

there is a life-threatening condition that places the female at risk of death or 

substantial impairment of a major bodily function and the physician provides the best opportunity for the unborn child to survive unless that 

would create a greater risk for the pregnant females death or a serious risk 

of substantial impairment of a major bodily function of the pregnant female. 

Tex. Health & Safety Code § 170A.002(b)(2)(3). EMTALAs void 

is answered by Texas state law. Second, as previously discussed, the purpose 

of EMTALA is to prevent patient dumping for both a pregnant woman 

and her unborn child. See 42 U.S.C. § 1395dd(a), (e); see also Marshall, 134 

F.3d at 322. Texass law does not undermine that purpose; it does not compel 

the rejection of patients. Harry, 291 F.3d at 774. Congressional history is 

telling. Specifically, Congress amended EMTALA in 1989 by adding unborn child into the statutory definition of emergency medical condition 

and its discussion of when transfer is appropriate. Compare 42 U.S.C. § 

1395dd(c), (e), Pub. L. 99-272, 100 Stat. 164, 16567 (1986), with 42 U.S.C. 

§ 1395dd(c), (e), Pub. L. 101-239, 103 Stat. 2245, 224649 (1989). Texas law 

does not stand in the way of providing stabilizing treatment for a pregnant 

woman or the unborn child. See Tex. Health & Safety Code § 

170A.002(b)(2)(3). 

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EMTALA refers to patients as individuals throughout. See generally 42 U.S.C. § 1395dd. Citing the Dictionary Act, see 1 U.S.C. § 8(a), HHS 

claims that the word individual does not include the fetus. The Dictionary Act defines individual as including every infant member of the 

species homo sapiens who is born alive at any stage of development. 1 

U.S.C. § 8(a). Thus, according to HHS, EMTALA expressly only creates a 

duty to only individuals with respect to screening, stabilization, and transfer, 

and Congress did not also extend those duties to the unborn. HHSs reading is misplaced. 

Congress specifically chose to define an emergency medical condition 

as a medical condition that places the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy. 42 U.S.C. § 1395dd(e)(1)(A) (emphasis added). The text 

speaks for itself: EMTALA requires hospitals to stabilize both the pregnant 

woman and her unborn child. See Scalia & Garner, supra, at 5658 (Under the supremacy-of-text principle, words are given meaning by their context, and context includes the purpose of the text.). As previously stated, 

this is a dual requirement. Matter of Baby K, 16 F.3d 590, 597 (4th Cir. 1994), 

does not change this conclusion. There, the Fourth Circuit held that EMTALA preempted state law that permitted physicians to refuse to provide 

medical treatment that the physician consider[ed] medically or ethically inappropriate. Matter of Baby K, 16 F.3d at 595 (footnote omitted). Differentiated on the facts alone, Matter of Baby K involved a baby that had already 

been delivered and required stabilization under EMTALA. Id. at 59394, 597. 

The Fourth Circuit determined that the Virginia state law directly conflicted 

with EMTALAs stabilization requirement. Id. at 597. Unlike the discussion 

here, there was no balancing between the mother and the unborn child. 

Finally, HHS claims that EMTALA mandates the pregnant woman to 

resolve the conflict between the pregnant individual and unborn child 

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through consent or refusal of treatment. See 42 U.S.C. § 1395dd(b)(2). As 

previously discussed, EMTALA leaves the balancing of stabilization to doctors, who must comply with state law. Id. § 1395dd(e)(1), (e)(3)(A). We agree 

with the district court that EMTALA does not provide an unqualified right 

for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations. 

The question before the court is whether EMTALA, according to 

HHSs Guidance, mandates physicians to provide abortions when that is the 

necessary stabilizing treatment for an emergency medical condition. It does 

not. We therefore decline to expand the scope of EMTALA. 

C. 

Under the Medicare Act, an agency is required to conduct notice-andcomment rulemaking when promulgating any rule, requirement, or other 

statement of policy . . . that establishes or changes a substantive legal standard 

governing . . . the payment for services or the eligibility of individuals, entities, or organizations to . . . receive services or benefits. 42 U.S.C. § 

1395hh(a)(2); see also Azar v. Allina Health Servs., 139 S. Ct. 1804, 1808 

(2019). Unlike the APAwhere statements of policy are not substantive and 

thus not subject to notice and commentstatements of policy that establish 

or change a legal standard are subject to notice and comment under the Medicare Act. Azar, 139 S. Ct. at 181114; compare 5 U.S.C. § 553(b)(A), with 42 

U.S.C. § 1395hh(a)(2). Under the Medicare Act, a statement of policy is 

defined as a policy that let[s] the public know [the agencys] current . . . 

adjudicatory approach. Azar, 139 S. Ct. at 1810 (quoting Syncor Intl Corp. 

v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997)). 

The Guidance, at a minimum, falls under Azars definition of a statement of policy because it lets the public know of HHSs adjudicatory approach concerning the application of EMTALA with respect to abortion 

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and state abortion laws. The Texas plaintiffs list out a few obvious reasons, 

including the civil monetary penalties physicians and hospitals face if they do 

not provide abortions in various circumstances. Guidance at 5. According to 

the Guidance, HHS [Office of the Inspector General] may also exclude physicians from participation in Medicare and State health care programs. CMS 

may also penalize a hospital by terminating its provider agreement. Id. The 

Guidance also provides safe harbors for physicians, including as a defense 

to a state enforcement action, in a federal suit seeking to enjoin threatened 

enforcement, or under a retaliation provision. Id. Plainly then, the Guidance 

govern[s] . . . the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under the Medicare Act. 42 U.S.C. § 

1395hh(a)(2). 

HHSs argument thus hinges on whether the Guidance establishes 

or changes a substantive legal standardi.e., alters EMTALAs generally 

applicable mandate to provide stabilizing treatment for emergency medical 

conditions. HHS claims it does not and argues that the Guidance addresses 

obligations that EMTALA itself imposes only if two conditions are met: (1) 

the medical provider believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined 

by EMTALA, and (2) that medical provider concludes that an abortion is the 

stabilizing treatment necessary. 

As discussed at length infra, the Guidance goes beyond EMTALA by 

mandating abortion. Thus, because the Guidance establishes or changes a 

substantive legal standard, see id., HHS was required to subject the Guidance to notice and comment. 

D. 

 In the least, HHS seeks to narrow the injunction, claiming that the 

language is overbroad. Federal Rule of Civil Procedure 65(d)(1)(B) and (C) 

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requires every injunction must state its terms specifically; and . . . describe 

in reasonable detailand not by referring to the complaint or other documentthe act or acts restrained or required. The specificity requirement 

is not unwieldy. An injunction must simply be framed so that those enjoined 

will know what conduct the court has prohibited. EEOC, 933 F.3d at 451 

(quoting Meyer v. Brown & Root Constr. Co., 661 F.2d 369, 373 (5th Cir. 1981)). 

The relevant language here is: 

(1) The defendants may not enforce the Guidance and Letters 

interpretation that Texas abortion laws are preempted by EMTALA; and 

(2) The defendants may not enforce the Guidance and Letters 

interpretation of EMTALAboth as to when an abortion is required and EMTALAs effect on state laws governing abortionwithin the State of Texas or against AAPLOGs members and CMDAs members. 

The injunction is not overbroad. As previously discussed, EMTALA 

does not mandate medical treatments, let alone abortion care, nor does it 

preempt Texas law. The injunction squarely enjoins HHS from enforcing the 

Guidance and Letter regarding these two issues within the State of Texas and 

against the plaintiff organizations. A plain reading of the injunction language 

also leaves exceptions under the Texas HLPA. See Tex. Health & 

Safety Code § 170A.002(b)(1)(3). The district court was correct in tailoring the injunction based on the parties, issues, and evidence before it. See 

Louisiana v. Becerra, 20 F.4th 260, 26364 (5th Cir. 2021). 

VI. 

 For the foregoing reasons, the injunction is AFFIRMED. 

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