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Justice Department Sues Idaho Seeking to Restrain State’s ‘Near-Absolute Ban on Abortion’ When Pregnancy Threatens Health

AG Garland Announce Litigation To Protect Access To Reproductive Healthcare

U.S. Attorney Merrick Garland attends a news conference at the U.S. Department of Justice Aug. 2, 2022 in Washington, D.C.

The Department of Justice sued the state of Idaho on Tuesday in a complaint arguing that its “near-absolute ban on abortion” conflicts with federal law mandating that hospitals which receive Medicare funds provide emergency care.

“On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom,” Attorney General Merrick B. Garland noted in a statement. “That is what we are doing, and that is what we will continue to do. We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law. And we will closely scrutinize state abortion laws to ensure that they comply with federal law.”

“Women Should Not Have to Be Near Death to Get Care”

The tool in Garland’s arsenal against Idaho is the Emergency Medical Treatment and Labor Act (EMTALA), providing that hospitals that receives money from Medicare must provide treatment for an “emergency medical condition.”

“Crucially, ’emergency medical conditions’ under the statute include not just conditions that present risks to life but also those that place a patient’s ‘health’ in ‘serious jeopardy’ or risk ‘serious impairment to bodily functions’ or ‘serious dysfunction of any bodily organ or part,'” the complaint’s opening paragraph states.

Federal authorities note that such are sometimes also includes ectopic pregnancy, severe preeclampsia, or a pregnancy complication threatening septic infection or hemorrhage.

Department of Health and Human Services Secretary Xavier Becerra emphasized that emergency coverage isn’t optional for hospitals that get money from Medicare.

“Federal law is clear: patients have the right to stabilizing hospital emergency room care no matter where they live,” Becerra said in a statement. “Women should not have to be near death to get care. The Department of Health and Human Services will continue its work with the Department of Justice to enforce federal law protecting access to health care, including abortions.”

In a statement, Idaho Attorney General Lawrence Wasden (R) criticized the lawsuit as “politically motivated and called it “unfortunate” that discussions about federal and state laws couldn’t have been resolved at the negotiating table.

“Instead of complying with the requirements of this provision and reconciling Idaho’s law with EMTALA, or even attempting to engage Idaho in a meaningful dialogue on the issue, the federal government has chosen to waste taxpayer dollars on an unnecessary lawsuit,” Wasden said.

“Necessary to Prevent the Death of the Pregnant Woman”

Idaho law criminalizing abortion as a felony includes no carve-outs for these procedures, except as an “affirmative defense” in limited circumstances, the Justice Department says. Then, the physician must prove that “the abortion was necessary to prevent the death of the pregnant woman” or the pregnant patient reported an “act of rape or incest.”

The Justice Department says that does not go far enough to comply with federal law.

“Beyond care necessary to prevent death, the law provides no defense whatsoever when the health of the pregnant patient is at stake,” the complaint states. “And, even in dire situations that might qualify for the Idaho law’s limited ‘necessary to prevent the death of the pregnant woman’ affirmative defense, some providers could withhold care based on a well-founded fear of criminal prosecution.”

Idaho’s GOP-dominated legislature enacted the statute at issue — amid a wave of so-called “trigger” laws on abortion — in 2020, providing it would take effect if the Supreme Court overturned Roe v. Wade. Now the high court has done so with the Dobbs ruling, the law is set to take effect on Aug. 25.

If the Justice Department prevails, it will take a more limited form. The government argues that Idaho’s law violates the Supremacy Clause of the U.S. Constitution and wants a federal judge to declare the state law “invalid to the extent that it conflicts with EMTALA.” The lawsuit also seeks an injunction prohibiting enforcement of the portions of the abortion ban that conflict with federal law.

Read the complaint here:

(Photo by Drew Angerer/Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."