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Idaho AG: No need to keep protecting ER doctors from abortion prosecutions


Idaho AG: No need to keep protecting ER doctors from abortion prosecutions

Feb 13, 2023 | 6:30 am ET
By Kelcie Moseley-Morris
Idaho AG: No need to keep protecting ER doctors from abortion prosecutions
The door to Attorney General Raul Labrador's office at the Idaho State Capitol building on Jan. 6, 2023. (Otto Kitsinger for the Idaho Capital Sun)

Deputies from Idaho Attorney General Raúl Labrador’s office filed a new brief in U.S. District Court with new arguments that take into consideration the Idaho Supreme Court’s ruling on the state’s abortion laws. 

The Attorney General’s Office also asked the federal judge presiding over the case to again reconsider a preliminary injunction against the abortion ban.

The brief, written by Deputy Attorney General Steven Olsen, said the Idaho Supreme Court redefined the section of Idaho Code that bans nearly all abortions, with affirmative defenses for rape, incest and to save the pregnant person’s life. Medical providers who violate the statute face felony charges and suspension or permanent revocation of a medical license.

Idaho Attorney General Raul Labrador
Idaho Attorney General Raúl Labrador (Courtesy of the Idaho Attorney General’s office)

The U.S. Department of Justice filed a lawsuit seeking an injunction against the ban in early August, arguing that it violated the federal Emergency Medical Treatment and Labor Act, which requires hospitals that receive payments for the federal Medicare program to provide medical care to stabilize all patients who come to the hospital with a medical emergency. District Judge B. Lynn Winmill granted the government’s request to protect doctors who are handling emergency medical decisions from criminal penalties in situations such as ectopic pregnancies, where a non-viable fetus can jeopardize a pregnant person’s life, and miscarriages or other medical scenarios that fall into a medical gray area. Physicians submitted declarations supporting the federal government’s case saying the law was too vague about what constitutes saving a person’s life and when the physician could reasonably intervene without risking felony charges.

While the injunction is in place, all state officials are prohibited from pursuing criminal prosecution or suspending or revoking medical licenses from medical providers or hospitals if an abortion is necessary to avoid jeopardizing a pregnant person’s health.

Idaho Supp Brief 2.10.22

No conflict between Idaho law and EMTALA, attorney argues

Olsen wrote that the Idaho Supreme Court determined the ban does not require “objective certainty,” a medical consensus or a certain level of immediacy before an abortion can be deemed necessary to save a pregnant person’s life. The state also argues the court held that ectopic and other non-viable pregnancies do not fall within the definition of abortion that is outlined in Idaho Code.

“Under what is now known to be the authoritative interpretation of Idaho law, this court’s preliminary injunction decision would come out differently,” Olsen said.

Olsen argued the affirmative defense for physicians does not promote delays or worsen patient outcomes, and the Idaho Supreme Court’s determination that ectopic and non-viable pregnancies do not meet the definition of abortion means there is no conflict between Idaho law and EMTALA.

“The Idaho Supreme Court’s decision renders essential parts of this court’s preliminary injunction order unsupportable, and as a result, this court should deny the preliminary injunction that the United States seeks,” Olsen wrote.

Federal judge denies Legislature’s new motion to file its own briefs in abortion case 

District Judge B. Lynn Winmill also denied a renewed motion to intervene in the case by attorneys for the Idaho Legislature, which has asked the court to allow briefs from the Legislature’s perspective in the case. Winmill granted a limited intervention for the initial court appearance in August but said he would not allow the attorneys to file its own briefs moving forward.

Judge B. Lynn Winmill
Idaho District Court Judge B. Lynn Winmill (Courtesy of District of Idaho courts)

After the Legislature’s attorneys, Monte Neil Stewart and Daniel W. Bower, asked Winmill to reconsider again this month and inferred he was purposely delaying the case to see if the Idaho Supreme Court would rule differently, he denied the motion.

“The court can assure the Legislature that the state’s supposed ‘delays in acting on the Legislature’s motion for reconsideration’ did not result in the court’s putting off its decision … other factors, primarily the fact this court remains overburdened, caused this delay,” Winmill wrote in his decision. “Because the Legislature has again failed to show that the state is inadequately representing its identical interest in defending Idaho’s abortion ban, its renewed motion to intervene as a matter of right is denied.”