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U.S. Department of Justice sues Idaho over abortion trigger ban


U.S. Department of Justice sues Idaho over abortion trigger ban

Aug 02, 2022 | 2:21 pm ET
By Kelcie Moseley-Morris
U.S. Department of Justice sues Idaho over abortion trigger ban
U.S. Attorney General Merrick Garland announced the Department of Justice's lawsuit against Idaho in a press conference on Tuesday, saying abortion is emergency stabilizing care in some situations. (Demetrius Freeman-Pool/Getty Images)

The U.S. Department of Justice is suing the state of Idaho over the state’s trigger law that will ban nearly all abortions. The law is scheduled to take effect on Aug. 25, unless the Idaho Supreme Court puts the law on a temporary hold after a hearing Wednesday.

The lawsuit argues that Idaho’s trigger ban on abortion is unconstitutional. According to the Justice Department’s argument, the state law conflicts with a federal law that requires hospitals to provide medical care to stabilize all patients who come to the hospital with a medical emergency. 

That federal law — the Emergency Medical Treatment and Labor Act — applies to all hospitals that receive federal Medicare payments, which is effectively all U.S. hospitals with emergency rooms. The lawsuit says Idaho’s trigger ban on abortion violates the Supremacy Clause of the U.S. Constitution because it is in conflict with the act.

U.S. Attorney General Merrick Garland announced the lawsuit in a press conference on Tuesday, saying abortion is emergency stabilizing care in some situations. According to the lawsuit, Idaho’s trigger law places health care providers in an “untenable position of risking criminal prosecution under state law or subjecting themselves to enforcement actions under federal law.”

Violating EMTALA can result in a hospital losing its ability to receive Medicare payments — one of the main sources of revenue for hospitals.

“In some circumstances, the medical treatment necessary to stabilize the patient’s condition is abortion,” Garland said at the press conference. “This may be the case, for example, when a woman is undergoing a miscarriage that threatens septic infection or hemorrhage or is suffering from severe preeclampsia.”

Garland said Idaho’s law will make it a felony for doctors to provide emergency medical treatment that is required by federal law, and while the trigger law includes language that creates an affirmative defense when an abortion is performed to prevent a pregnant person’s death, it does not include an exception if an abortion is necessary to prevent “serious jeopardy” for a person’s health.

“Moreover, it would subject doctors to arrest and criminal prosecution even if they performed an abortion to save a woman’s life, and it would then place the burden on the doctors to prove that they are not criminally liable,” Garland said.

Idaho Attorney General Lawrence Wasden said in a statement that the Department of Justice did not attempt to “engage Idaho in a meaningful dialogue on the issue” prior to filing the lawsuit, and called it a waste of taxpayer dollars.

“It’s unfortunate that, instead of sitting down with the state of Idaho to discuss the interplay between its abortion laws and EMTALA, the U.S. Department of Justice has chosen to file a politically motivated lawsuit,” Wasden said in the statement. “Contrary to the carefully edited assertion in paragraph 25 of the department’s complaint that Idaho’s laws are preempted, EMTALA actually states: ‘The provisions of this section do not preempt any state or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.'”

In the lawsuit, the Department of Justice said it reached out to the Idaho attorney general’s office on Friday, July 29, and did not receive a “substantive response.”

Idaho Gov. Brad Little issued a statement Tuesday afternoon calling the lawsuit another example of federal overreach. 

“Here in Idaho, we are proud that we have led the country in protecting preborn lives,” Little said in the statement. “I will continue to work with (Wasden) to vigorously uphold state sovereignty and defend Idaho’s laws in the face of federal meddling.”

At least 43 hospitals in Idaho have Medicare agreements, Department of Justice lawsuit says

U.S. Health and Human Services Secretary Xavier Becerra released a statement in mid-July saying under federal law, access to stabilizing treatment that includes abortion is protected in all states.

The lawsuit also includes a request for a permanent injunction that would prohibit Idaho from enforcing the law against health care providers who administer abortions as emergency treatment required by federal law, Garland said.

“In the days since the Dobbs decision, there have been widespread reports of delays and denials of treatment to pregnant women experiencing medical emergencies,” Garland said. “Today, the Justice Department’s message is clear: It does not matter what state a hospital subject to EMTALA operates in. If a patient comes into an emergency room with a medical emergency jeopardizing the patient’s life or health, the hospital must provide the treatment necessary to stabilize that patient.”

According to the text of the lawsuit, at least 43 hospitals in Idaho have signed Medicare agreements, and 39 have emergency departments that are subject to compliance with the federal statute.

The lawsuit also says Idaho’s law is an obstacle to effective emergency care because it threatens the professional license of any health care professional who “assists” in performing or attempting to perform an abortion. The trigger law threatens a provider with a six-month license suspension for the first offense, and permanent revocation of a license for a second offense.

“A pregnant patient who arrives in the emergency department with an emergency condition is likely to encounter not just emergency department physicians, but also triage nurses, scrub nurses, lab techs, radiologists, anesthesiologists, and others whose role in any procedure could constitute ‘assisting’ in the performance of an abortion,” the lawsuit reads.

Associate U.S. Attorney General Vanita Gupta also spoke at the press conference and said the law would impede proper medical care.

“The law will chill providers’ willingness to perform abortions in emergency situations and will hurt patients by blocking access to medically necessary health care,” Gupta said.

Blaine Conzatti, president of the Idaho Family Policy Center who helped advocate for the trigger law’s passage in 2020, said this is the same tactic the Department of Justice unsuccessfully used to try to block Texas’ heartbeat law and he is confident the U.S. Supreme Court will similarly dismiss the case for lack of standing. The justices ruled the federal court did not have proper jurisdiction to sue the state over a law passed by the Legislature.

“This is just a last-ditch effort from a pro-abortion administration to keep abortion legal in Idaho, and the Supreme Court is not going to allow that to stand,” Conzatti told the Capital Sun.

The Department of Justice filed the case in the Ninth Circuit federal district court.