DOJ Sues Idaho Seeking to Halt Abortion Ban Law
- August 05, 2022
The Department of Justice announced August 2 that it filed a complaint seeking to invalidate Idaho Code § 18-622, which takes effect on August 25, 2022. The Idaho law would implement a near-total ban on abortions and make it a felony for physicians to perform an abortion in all but extremely narrow circumstances.
The first-of-its-kind post-Dobbs suit asks the U.S. District Court for the District of Idaho to issue a declaratory judgment that Section 18-622 conflicts with, and is preempted by, the Emergency Medical Treatment and Labor Act (EMTALA) in situations where an abortion is necessary stabilizing treatment for an emergency medical condition. DOJ also asks for an order permanently enjoining the Idaho law to the extent it conflicts with EMTALA.
According to the complaint, under Section18-622, a prosecutor can indict, arrest, and prosecute a physician merely by showing that an abortion has been performed, without regard to the circumstances. A physician can ultimately avoid criminal liability only by establishing as an affirmative defense that “the abortion was necessary to prevent the death of the pregnant woman” or that, before performing the abortion, the pregnant patient (or, in some circumstances, their parent or guardian) reported an “act of rape or incest” against the patient to a specified agency and provided a copy of the report to the physician. The law provides no defense for an abortion necessary to protect the health of the pregnant patient.
“Idaho’s criminal prohibition of all abortions, subject only to the statute’s two limited affirmative defenses, directly conflicts with EMTALA and stands as an obstacle to the accomplishment of EMTALA’s federal objectives of providing stabilizing care and treatment to anyone who needs it,” the complaint states.
Attorney General Merrick B. Garland said in remarks addressing the lawsuit that under EMTALA, every hospital that receives Medicare funds must provide necessary stabilizing treatment to a patient who arrives at an emergency room suffering from a medical condition that could place their life or health in serious jeopardy.
In some circumstances, the medical treatment necessary to stabilize the patient's condition is abortion; for example, when a woman is undergoing a miscarriage that threatens septic infection or hemorrhage, or is suffering from severe preeclampsia.
“Idaho’s law would make it a criminal offense for doctors to provide the emergency medical treatment that federal law requires. Although the Idaho law provides an exception to prevent the death of a pregnant woman, it includes no exception for cases in which the abortion is necessary to prevent serious jeopardy to the woman’s health,” Garland said. “We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law.”
Associate Attorney General Vanita Gupta, Chair of the newly established Reproductive Rights Task Force, also spoke to the press about the lawsuit, emphasizing that a “critical focus” of the task force “has been assessing the fast-changing landscape of state laws and evaluating potential legal responses to infringements on federal protections.”
“Today’s lawsuit against the State of Idaho for its near-absolute abortion ban is the first public example of this work in action. We know that these are frightening and uncertain times for pregnant women and their providers, and the Justice Department, through the Task Force’s work, is committed to doing everything we can to ensure continued lawful access to reproductive services,” Gupta said.
Responding to the lawsuit, Idaho Governor Brad Little said “we are proud that we have led the country in protecting preborn lives," adding that he will continue to work with the state's attorney general "to vigorously uphold state sovereignty and defend Idaho’s laws in the face of federal meddling."