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Doctors in Idaho ERs no longer shielded from prosecution under abortion law

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Doctors in Idaho ERs no longer shielded from prosecution under abortion law

Sep 29, 2023 | 3:50 pm ET
By Kelcie Moseley-Morris
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Doctors in Idaho ERs no longer shielded from prosecution under abortion law
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Emergency room doctors in Idaho are no longer protected from prosecution under the state’s abortion ban after the U.S. Ninth Circuit Court of Appeals reversed an order that had been in effect since August 2022. (Getty Images)

Emergency room doctors in Idaho are no longer protected from prosecution under the state’s abortion ban after the U.S. Ninth Circuit Court of Appeals reversed an order that had been in effect since August 2022.

The court granted the Idaho Legislature’s appeal after U.S. District Judge B. Lynn Winmill, an appointee of former President Bill Clinton, made the decision and refused to reconsider it in May. The case stems from the U.S. Department of Justice’s lawsuit against the state of Idaho, and the injunction went into effect one day before the abortion ban, which applies to all stages of pregnancy, became law.

Justice Department attorneys argued the law violated the federal Emergency Medical Treatment and Labor Act, which was originally meant to protect low-income and uninsured patients from being turned away for lack of ability to pay for care. A medical system that accepts Medicare funding must comply with EMTALA and provide stabilizing care to patients who come to the emergency room. Under EMTALA’s guidance, to stabilize means to provide medical treatment as necessary to ensure, within reasonable medical probability, that “no material deterioration of the condition” is likely to occur if the person is transferred to another facility. 

The Department of Justice’s complaint said Idaho’s ban put health care providers in an untenable position of risking either criminal prosecution under the state law or enforcement actions under the federal EMTALA law, and Winmill agreed.

With representation from a separate law firm, leadership in the Idaho Legislature appealed Winmill’s decision to the Ninth Circuit.

The ruling means Idaho’s emergency room physicians may now face prosecution if they perform an abortion to stabilize a patient, unless their actions qualify for the exception written into the law that states an abortion can be performed to “prevent the death of the pregnant woman.”

Idaho attorney general praises circuit court’s decision

Physicians have argued that the law is vaguely written and creates obstacles to determining when it is acceptable to intervene and perform an abortion in a medical emergency. If a provider is prosecuted under Idaho’s abortion law, they face two to five years in prison and are subject to the revocation or suspension of their medical license.

Idaho Attorney General Raúl Labrador celebrated the decision in a statement on Friday.

“Last year, the Supreme Court granted states the authority to establish their own abortion policies. In an effort to circumvent the Dobbs decision, (President Joe Biden’s) administration baselessly sued the State of Idaho. I’m proud of the work my team has done, including collaborating with the legislature’s counsel, to ensure Idaho’s sensible law continues to save the lives of babies and provides medical professionals with the ability to exercise their judgment to assist women who need emergency care,” Labrador said.   

The three appeals court judges, all of whom were appointed by former President Donald Trump, said recent legislative actions and other court rulings have invalidated the original arguments in the lawsuit. The opinion is authored by Judge Lawrence VanDyke and joined by Judges Bridget S. Bade and Kenneth K. Lee.

“The district court concluded that there is a gap between what a doctor might believe necessary to save the life of a pregnant woman and what might reasonably be expected to place the health of her or her unborn child in serious jeopardy, seriously impair their bodily functions, or cause serious dysfunction to any bodily organ or part,” the ruling said. “… But almost all the examples in the district court’s parade-of-horribles are no longer true, given the Idaho Legislature’s recent amendment to the statute and clarification from the Supreme Court of Idaho.”

The Idaho Supreme Court determined if a doctor believes an abortion is necessary in his or her good faith medical judgment to prevent a pregnant patient’s death, then the exception applies, the appellate judges said. As such, the declarations from doctors claiming the law undermines their medical judgment is “no longer valid.”

Law doesn’t require doctors to be ‘certain’ abortion is necessary to prevent death, judges say

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The appellate judges further said there is no “imminency requirement” to qualify for the exception, and the statute doesn’t require certainty on the part of the physician to perform an abortion.

“For all the hypotheticals presented by the district court … the two laws would not conflict even if EMTALA actually required abortions,” the opinion states. “In sum, when a doctor determines an abortion is necessary to save the life of the mother, termination of a pregnancy is not punishable by (Idaho Code).”

“Anti-abortion politicians have already banned abortion in the state of Idaho. And now it’s being taken a step further by taking away people’s ability to access emergency care when they need it the most,” said Rebecca Gibron, CEO of Planned Parenthood Great Northwest, in a statement on Friday. “We’re dedicated to prioritizing our patients’ health and wellbeing — even if our state won’t. Because beyond the right to have an abortion, people deserve to have their doctors make decisions with their health and wellbeing in mind every time. That shouldn’t be a radical stance.”

The Legislature’s representation has also appealed its right to intervene in the case with the Ninth Circuit. Winmill has denied the Legislature’s motions to be involved in the case past the preliminary stages, determining that the Idaho Attorney General’s office is sufficient to represent the state’s interests. The Ninth Circuit has not yet made a decision on that aspect of the appeal.