Justice Department asks judge to pause Idaho abortion ban
Protestors march through downtown Boise chanting pro-abortion rights slogans on their way to the Idaho Capitol steps, June 24, 2022 in Boise.(Darin Oswald/Idaho Statesman via AP, file)
By REBECCA BOONE
BOISE — The U.S. Department of Justice asked a federal judge this week to bar Idaho from enforcing its near-total abortion ban while a lawsuit pitting federal health care law against state anti-abortion legislation is underway.
Meanwhile, the Republican-led Idaho Legislature is asking for permission to intervene in the federal case, just as it has done in three other abortion-related lawsuits filed in state courts.
The complex legal maneuvering playing out in Idaho is becoming increasingly common in red states as the American landscape of reproductive care continues to feel the aftershocks from the U.S. Supreme Court’s decision overturning decades of abortion rights rulings. Judges in the neighboring states of Montana and Wyoming were weighing similar requests, with the Montana Supreme Court on Tuesday keeping three abortion laws on pause and the Wyoming judge expected to issue a ruling soon.
“If allowed to go into effect, the Idaho law will cause significant irreparable harm, including to the public health of patients across Idaho,” Justice Department attorney Lisa Newman wrote in court documents filed Monday.
The Justice Department sued Idaho last week over the state's strict abortion ban, saying it would force doctors to violate the Emergency Medical Treatment and Labor Act, a federal law that requires anyone coming to a medical facility for emergency treatment to be stabilized and treated.
The law enacted in 2020 and set up as a “trigger law” automatically takes effect on Aug. 25 now that the U.S. Supreme Court has overturned its landmark abortion rights ruling nearly a half-century after Roe v. Wade.
The law criminalizes all abortions, and anyone who performs, attempts or assists with abortions can face two to five years in prison in addition to losing their health care license. However, physicians who perform abortions to save a patient's life, or in cases of rape or incest, can use that information as a legal defense during the criminal trial.
The Emergency Medical Treatment and Labor Act requires hospitals that receive federal Medicare funds to provide stabilizing medical treatment to patients experiencing medical emergencies. Some of those patients are pregnant, the Justice Department said, and in some situations that emergency stabilizing treatment involves terminating a pregnancy.
Idaho has 52 Medicare-certified hospitals that together received approximately $3.4 billion in Medicare funds during the 2018, 2019 and 2020 budget years, according to the lawsuit, including about $74 million that was attributed to the hospitals' emergency departments.
Idaho's law is “far narrower” than the federal law, the Justice Department contends, and and puts physicians in impossible positions when they have patients with ectopic pregnancies, dangerously high blood pressure, serious infections and other life-threatening conditions.
“Even in cases where termination of the pregnancy is necessary to prevent the patient’s death, the Idaho law requires a physician to risk arrest and prosecution for each abortion performed because the law affords only an ‘affirmative defense’ that the physician must prove at trial," Newman wrote for the federal government. "By threatening physicians with criminal prosecution — even when they provide treatment in emergency, life-threatening situations as federal law requires — Idaho’s law penalizes and discourages such treatment, and thereby conflicts directly with federal law.”
Idaho Attorney General Lawrence Wasden's office has not yet responded to the lawsuit in legal filings, but Wasden issued a statement last week calling the lawsuit “politically motivated” and criticizing the Justice Department for not first seeking a “meaningful dialogue” with state officials on the issue.
The Idaho Legislature asked permission to formally intervene in the case on Monday.
“The Legislature has unique understandings and insights into Idaho emergency room abortions (the only type of abortions at issue here) that will also assist this court in the just resolution of this civil action,” the legislature’s privately hired attorneys, Daniel Bower and Monte Neil Stewart, wrote.
Senior U.S. District Judge B. Lynn Winmill did not say in court documents when he would make a ruling on the Justice Department request to put the abortion ban on hold, but did set out a timeline requiring that “friend of the court” briefs like those from the Legislature be filed by Aug. 19 in the case.
The state of Idaho is also fighting three other abortion-related lawsuits in the Idaho Supreme Court. Those lawsuits, filed by a regional Planned Parenthood affiliate and a family doctor, take aim at the state's near-total abortion ban, another abortion ban that begins after six weeks of pregnancy, and a law allowing potential relatives of an embryo or fetus to sue abortion providers for at least $20,000.
Those cases are still pending in court.
In Wyoming, attorneys argued Tuesday over whether Wyoming’s abortion ban should continue to be suspended amid a lawsuit contesting the new law.
Four women, including two obstetricians, and two nonprofits, including one that planned to open a Casper women’s health and abortion clinic that was firebombed in May, filed the Wyoming lawsuit. Wyoming’s law would allow abortions in cases of rape, incest and serious medical complications but the ban would force pregnant women in such circumstances and their doctors to grapple with the risk of prosecution, they argue.
Teton County District Judge Melissa Owens, in Jackson, showed sympathy with those arguments in temporarily suspending Wyoming’s abortion ban hours after it took effect July 27. After hearing similar arguments again Tuesday, Owens plans to rule no later than Wednesday on whether to continue to suspend the law.
Meanwhile in Montana, the state Supreme Court on Tuesday upheld a temporary injunction blocking three abortion laws passed by the 2021 Legislature from taking effect while a legal challenge plays out.
The challenged laws would have banned abortions passed 20 weeks, eliminated tele-health services for medication abortions and require abortion providers to offer patients the opportunity to listen to the fetal heart tone or view an ultrasound before performing an abortion.