OPINION: AG candidates disagree on ER care
| August 27, 2022 1:00 AM
On Aug. 2, the U.S. Department of Justice (DOJ) filed its first-in-the-nation suit against a state law preventing women from receiving necessary emergency care when their lives are threatened by dangerous pregnancy complications. The Idaho law makes it a felony offense, with a mandatory minimum prison sentence of two years, for anyone to perform or assist with an abortion. The DOJ correctly asserts that the Idaho law “preemptively criminalizes all abortions … even where a denial of care will likely result in the death of the patient."
A doctor can be prosecuted, even if an abortion procedure was essential to save the life of an emergency room patient. The doctor can escape prison and license revocation only by convincing a jury that the abortion was necessary to prevent the death of the pregnant woman or if the pregnancy resulted from rape or incest that was reported to law enforcement.
The DOJ claims the Idaho law conflicts with a federal law called the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals receiving Medicare funding to provide emergency care to those who come to their emergency rooms with conditions that seriously jeopardize their health. Emergency conditions include dangerous pregnancy complications such as an ectopic pregnancy that could cause a woman to bleed to death, sepsis that could result in organ failure, and life-threatening eclampsia. The DOJ seeks a court ruling that the law cannot apply in the emergency room setting.
The main problem with the law is that it was poorly drafted and rushed through without any informed medical input. Practically no consideration was given to the serious problems that arise for doctors, lawyers and the courts in the interpretation and application of sloppy, ambiguous wording.
Raul Labrador, the Republican candidate for attorney general, strongly supports the law and has objected to the emergency room lawsuit. He told the Idaho Press, “the people of Idaho understand better than ever why we need a strong attorney general who will stand up to the bullies in D.C. and defend Idaho’s duly enacted laws. Idaho respects life. Our Idaho elected officials have enacted strong pro-life laws to defend the rights of the unborn. In filing this lawsuit, the Biden administration seeks to replace the will of Idaho’s citizens with President Biden’s pro-abortion priorities.”
Labrador’s opponent, Tom Arkoosh, responded, “It is not enough to fulminate over federal overreach, like my opponent. The state’s top lawyer must take a clear-eyed view of a case like this and arrive at the response that best serves the state and its people. I have said there is no valid legal defense to the case. Nor is there a moral or ethical defense against a law that would deprive women of emergency health care and subject emergency room workers to criminal prosecution. If I were Idaho attorney general, I would negotiate a settlement that would allow the emergency room doctor, with the patient’s consent, to provide the medically necessary care without fear of prosecution.”
On Aug. 25, the judge issued a decision that mirrors Tom Arkoosh’s legal analysis of the case. The abortion ban will not be enforced in the emergency room setting until the judge issues a final ruling on the merits. The judge indicated the DOJ would likely prevail in the case. Idahoans can judge for themselves which candidate evaluated this case in a legal, ethical and commonsense manner.
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Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general and 12 years as a justice on the Idaho Supreme Court. He serves as treasurer of the Arkoosh campaign.
The Idaho law makes it a felony offense:
DOJ correctly asserts: