The Attorney General of Texas Tuesday filed a lawsuit against the Biden administration over federal guidance informing pharmacies that refusing to fill prescriptions for abortion medication breaks federal civil rights law. The complaint argues that the guidance was procedurally invalid and violates federal law, saying “the question of abortion is up to the people’s elected representatives—not unelected bureaucrats. The Biden Administration’s attempt to inject itself into that question is both procedurally and substantively illegal.”
Texas puts forth three counts that it believes invalidate the executive action. The first, that the action violates federal law, says the guidance improperly includes discrimination against pregnant people in its interpretation of Title IX. It also cites various provisions in the federal code, including the Hyde Amendment and a section of the Affordable Care Act that reads:
Nothing in this Act shall be construed to preempt or otherwise have any effect on State laws regarding the prohibition of (or requirement of) coverage, funding, or procedural requirements on abortions, including parental notification or consent for the performance of an abortion on a minor.
The first count also asserts that the guidance is an unconstitutional use of conditional spending power. The second and third counts are concerned with procedural issues, arguing that the action failed to complete notice and comment proceedings, and that the decision was arbitrary and capricious. Texas asked the court to permanently block the federal government from enforcing the guidance in question.
The Department of Health and Human Services issued the guidance in July 2022 after President Biden signed an executive order directing it to protect access to abortion. In a statement at the time, Secretary of Health and Human Services Xavier Becerra said “we are committed to ensuring that everyone can access health care, free of discrimination. This includes access to prescription medications for reproductive health and other types of care.” He has not yet responded to the lawsuit.