U.S. Department of Justice challenges Idaho abortion ban in court

Attorney General Merrick Garland Attorney General Merrick Garland | Justice Department

The U.S. Department of Justice filed a lawsuit Tuesday against Idaho, seeking to block the state’s trigger law which will ban abortions — with a few exceptions — beginning Aug. 25. 

Announcing the lawsuit in an Aug. 2 press conference, Attorney General Merrick Garland said the DOJ is suing the state because of a supposed conflict with a federal law that requires hospitals to provide stabilizing treatment to a person experiencing a medical emergency, regardless of their ability to pay. 

The lawsuit is the first legal challenge brought by the federal government against a state abortion restriction since the U.S. Supreme Court overturned Roe v. Wade in June, returning the question of abortion policy to the states. The DOJ is seeking to block Idaho’s law from taking effect. 

Garland asserted that Idaho's law will prevent doctors from performing abortions when the mother's life is at risk, despite the law having an explicit carveout for such a situation. Idaho’s law provides an exception to the ban if the abortion was, in the physician’s judgement, “necessary to prevent the death of the pregnant woman.”

Under the 1986 Emergency Medical Treatment and Labor Act (EMTALA), every hospital that receives Medicaid funds must provide "stabilizing treatment'" to patients with an "emergency medical condition." According to the DOJ, the law defines necessary stabilizing treatment to include “all treatment needed to ensure that a patient will not have her health placed in serious jeopardy, have her bodily functions seriously impaired, or suffer serious dysfunction of any bodily organ or part.”

"In some circumstances, the medical treatment necessary to stabilize the patient's condition is an abortion," Garland said. 

"When a hospital determines that an abortion is the medical treatment necessary to stabilize a patient's emergency medical condition, it is required by federal law to provide that treatment.” 

Other than the life of the mother, the Idaho law’s only exception is for instances of rape or incest that has been reported to police, and a copy of the report has been provided to the physician. 

Garland argued that the Idaho law lacks an exception for a situation where an abortion is necessary to prevent "serious jeopardy to the mother's health." He said the DOJ chose Idaho’s law to target because it seemed “on its face" to contradict EMTALA.

All of the U.S. states which have “trigger laws” banning abortion have exceptions for instances where abortion may be necessary to save the mother’s life. State abortion bans in other states, such as Texas, provide exceptions for when abortion may be necessary to prevent “serious risk of substantial impairment of a major bodily function.”

In addition, some states also provide explicit exceptions for treatments for the removal of a miscarried child, or treatment for ectopic pregnancy, though these are not generally considered abortions. 

A recent analysis of state pro-life laws by the Charlotte Lozier Institute noted that EMTALA requires evaluation and stabilization of a pregnant woman presenting with a suspected emergency, but also that the directive treats both the woman and the unborn child as patients in need of care, and that “none of the state laws prohibit this evaluation or provision of life-saving care.”

Despite this, the Biden administration has made EMTALA a centerpiece of its response to pro-life state laws. In a July 11 letter to healthcare providers, Secretary of Health and Human Services (HHS) Xavier Becerra instructed the providers to perform abortions in emergencies — regardless of state law — under EMTALA. The Centers for Medicare and Medicaid Services (CMS), a division of the HHS, also issued a memorandum July 11 with the same instruction found in Becerra’s letter.

In response, the co-chair of the Catholic Medical Association's Ethics Committee noted to CNA that Catholic health care treats two patients with every pregnancy.

“Treating a pathology of the mother does not require a direct attack on the unborn child,” Dr. Marie Hilliard told CNA in July. 

On July 14, Texas filed a complaint against the HHS, CMS, and their leadership for their instruction regarding EMTALA. The state condemned the “Abortion Mandate” as an “unconstitutional exercise of authority” that “must be held unlawful and set aside.”

Texas accused the Biden administration of attempting to “use federal law to transform every emergency room in the country into a walk-in abortion clinic.”

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“No federal statute confers a right to abortion,” the complaint says. “EMTALA is no different. It does not guarantee access to abortion. On the contrary, EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child. It is obvious that abortion does not preserve the life or health of an unborn child.”

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