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Alliance Defending Freedom asks U.S. Supreme Court to intervene in Idaho abortion case


Alliance Defending Freedom asks U.S. Supreme Court to intervene in Idaho abortion case

Nov 21, 2023 | 4:43 pm ET
By Kelcie Moseley-Morris
Alliance Defending Freedom asks U.S. Supreme Court to intervene in Idaho abortion case
People protest in response to the Dobbs v. Jackson Women’s Health Organization ruling, in front of the U.S. Supreme Court on June 24, 2022, in Washington, D.C. (Photo by Brandon Bell/Getty Images)

Attorneys for two national law firms have asked the U.S. Supreme Court to intervene in a federal case in Idaho regarding whether emergency room physicians can continue to be shielded from prosecution under the state’s abortion ban.

If the court were to grant the motion, ER doctors in Idaho would again be subject to criminal penalties and loss of medical licenses for performing an abortion unless it qualified under the state exception to save the pregnant patient’s life.

The Alliance Defending Freedom announced it filed an emergency application for a stay pending appeal with the high court on Monday, in conjunction with attorneys from Cooper & Kirk, on behalf of Idaho Attorney General Raúl Labrador’s office. Alliance Defending Freedom is a religious conservative group that recruits and trains attorneys to litigate cultural issue cases, including abortion, anti-LGBTQ legislation and what they consider violations of Christian religious freedom. Cooper & Kirk have represented several conservative politicians in high-profile cases, including defending Florida Gov. Ron DeSantis’ “anti-woke” law that limits classroom instruction and employee training on issues of race. 

Case centers on federal Emergency Medical Treatment and Labor Act 

According to public records, the Idaho Legislature has spent more than $370,000 on outside attorneys from the law firm Morris Bower & Haws since the case began. In Florida, Cooper & Kirk attorneys charged the state government up to $725 per hour.

The Idaho case has followed several rounds of back-and-forth in the court system since August 2022, when U.S. District Judge B. Lynn Winmill agreed with the U.S. Department of Justice that Idaho’s near-total ban on abortions violated the federal Emergency Medical Treatment and Labor Act, or EMTALA. A medical system that accepts Medicare funding is required to provide stabilizing care to patients who come to the emergency room regardless of their ability to pay, including pregnant patients. To stabilize, according to the law, means to ensure a person’s condition won’t deteriorate in a significant way if they are transferred to another facility.

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The motion was filed a few days after the 9th Circuit Court of Appeals announced a panel of its judges would hear the case again on Jan. 22. The Alliance Defending Freedom is involved in a similar case in Texas that is under consideration in the 5th Circuit Court of Appeals. In both cases, the attorneys argue the federal government is attempting to force ER physicians to perform elective abortions, which is not something physicians in Idaho have publicly identified as a concern.

“The federal government’s post-Dobbs, revisionist interpretation of EMTALA not only seeks to

immunize emergency room abortionists from complying with state law, but also would coerce pro-life emergency room doctors to perform or complete on-demand abortions, including ‘incomplete medical abortions,’ as a ‘necessary’ stabilizing treatment,” the attorneys wrote in their motion to the U.S. Supreme Court.

Attorneys argue over what EMTALA requires of physicians  

Idaho’s abortion ban applies to any stage of pregnancy and contains an exception only to save a pregnant patient’s life, and the government has argued health providers would be put in a position of risking criminal prosecution under the state law or loss of funding and other enforcement actions for violating EMTALA.

Winmill, who was appointed by former President Bill Clinton, issued an injunction to block the law in those scenarios while the case proceeds.

For a little less than two weeks in October, those protections did not apply after a three-judge panel of 9th Circuit judges said recent actions by the Idaho Legislature and other court rulings invalidated the initial arguments in the Justice Department’s complaint, and that the exception to prevent death was sufficient.

Following that initial ruling, senior counsel for St. Luke’s, one of Idaho’s largest health care systems, told States Newsroom that any patient who came to the hospital’s ER or labor and delivery unit would receive an exam and stabilizing care, but if termination was deemed necessary to protect the patient’s health before their condition deteriorated to an emergency, the patient would potentially need to be transferred to avoid committing a crime.

During those two weeks, at least one patient in Idaho had to be transferred to Salt Lake City, Utah, after her water broke at 20 weeks of pregnancy and an infection developed in her uterus. At 20 weeks, a fetus is not yet viable even with medical interventions, and inducing delivery is considered an abortion in medical terms.

On Oct. 10, the 9th Circuit announced the case would be reconsidered by a larger panel of judges, known as an “en banc” review. The court is made up of 15 judges appointed by Democratic presidents and 13 appointed by Republican presidents, and 10 of those judges would be randomly selected to hear the case again, in addition to the chief judge of the court.

Alliance Defending Freedom attorneys argue that because the 9th Circuit did not provide a reason for reconsidering the case, that alone justifies intervention by the U.S. Supreme Court. Additionally, they said, EMTALA requires only the treatment that is available at the hospital in question, and is only meant to ensure that patients are not denied treatments otherwise allowed because of an inability to pay.

“Just as EMTALA does not require emergency rooms to provide psychiatric services where they are unavailable … it does not require emergency rooms to provide treatments that are unavailable because state law forbids them,” the motion said. “And if emergency rooms need not staff up with psychiatrists, they certainly do not have to staff up with abortionists. The federal government cannot use EMTALA to override in the emergency room state laws about abortion any more than it can use it to override state law on organ transplants or marijuana use.”

As of Tuesday afternoon, it was unclear if the emergency motion had already been officially filed with the U.S. Supreme Court, or when the matter might be decided after it has been filed. According to the motion, attorneys are prepared to argue the case as soon as April.