Idaho’s ‘trigger’ law, set to go into effect Thursday, prohibits abortions except in cases of rape or when a woman’s life is in danger. There is no exception if a patient faces non-fatal health risks, such as stroke or organ damage, while continuing the pregnancy.
U.S. District Judge B. Lynn Winmill said he will decide by Wednesday whether the law can go into effect Thursday as it is currently written.
Since the end of Roe v. Wade, more than one in three American women no longer have access to abortion
Lawyers for the Justice Department have framed their lawsuit on their interpretation of a 1986 law that has rarely been associated with abortion in court: the Emergency Medical Treatment and Active Labor Act. They say the law, known as EMTALA, requires hospitals participating in the federally funded Medicare program to provide necessary, health-stabilizing treatment to all patients, even if that treatment is an abortion.
Idaho responded that the Justice Department’s attempt to block parts of its abortion law should be considered a federal overreach since the Supreme Court has ruled that states can set their own abortion restrictions by virtue of Dobbs v. Jackson Women’s Health Organization.
EMTALA aims to enshrine the physician’s obligation to treat critically ill patients and to ensure that hospitals do not ignore anyone who needs life-saving or life-stabilizing treatment but cannot afford it.
The law does not mention abortion, but Attorney General Merrick Garland argued in his lawsuit this month that refusing to perform an abortion if it could save a woman’s life or protect her health would violate EMTALA.
Experts have described the approach as a new legal strategy that highlights the few tools the Biden administration has to try to mitigate the national impact of the reversal. Roe vs. Wade. Even if the Justice Department wins this case in court, experts noted, the judge’s ruling would only protect access to abortion in extreme and rare circumstances when a pregnant patient’s health is at stake. A court victory would have no impact on the ability to terminate an unwanted pregnancy that poses no significant health risk. Under the Dobbs decision, States are largely free to prohibit such procedures.
“I think EMTALA is a real strength for the administration on expanding access to abortion,” said Lawrence Gostin, professor of global health law at Georgetown University, who has said he pressured people he knew in the Biden administration to use federal law. “Biden’s options are limited. He cannot reverse the Dobbs decision.”
Winmill, who was appointed to the federal bench in 1995 by President Bill Clinton, opened the hearing Monday morning by making a similar point to lawyers on both sides: that the case would not serve as a broad debate on the issue of whether abortion should be allowed in the country.
“Dobbs is the law of the land here,” Winmill said.
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The judge tried to largely focus the hearing on whether Idaho law conflicts with federal EMTALA requirements — and whether federal and state laws can coexist the way they do. are currently being drafted.
The Justice Department also opposed a piece of Idaho law that would allow authorities to arrest a medical professional involved in performing an abortion, requiring that person to prove in court that the abortion met the criteria for one of the exceptions.
“It would expose doctors to arrest and criminal prosecution even if they perform an abortion to save a woman’s life,” Garland told a news conference earlier this month. “And then it would be on the doctors to prove that they are not criminally responsible.”
Lawyers representing Idaho said Monday that medical professionals acting in good faith would not be prosecuted for performing an abortion on a critically ill patient, though Winmill and Justice Department attorneys appeared skeptical.
The judge presented Idaho attorneys with two hypothetical medical situations during the nearly two-hour hearing. In the first, he asked what would happen if a doctor called them asking for legal advice on whether to perform an abortion on a woman who had a 50% chance of dying without one. In the second hypothesis, the judge said, the patient treated would not die without an abortion, but would run a high risk of stroke or organ damage if her pregnancy continued.
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Brian Church, Idaho’s assistant attorney general, responded to the judge’s first guess by saying state attorneys would tell the doctor to use their best medical judgment. On the second assumption, he said he would tell the doctor what the law says.
Monte N. Stewart, an attorney speaking for the Idaho House of Representatives, suggested that the state would not hire prosecutors who try to prosecute doctors who performed an abortion on a critically ill woman. .
The judge rejected this argument.
“The problem is that real-world events are very difficult to predict, but the text of the law is very clear,” Winmill said.
Although this is the first time the Biden administration has argued in court that EMTALA protects the right to abortion in certain cases, it has previously attempted to require hospitals that receive Medicare funds to practice. abortions that would protect a patient’s health.
In July, the Centers for Medicare and Medicaid Services — the federal office responsible for enforcing EMTALA — issued guidance to hospitals stating that the law takes precedence over any state law prohibiting performing an abortion when the health of a woman is in danger.
“Where a state law prohibits abortion and does not include an exception for the life and health of the pregnant person – or establishes the exception more narrowly than the definition of emergency medical condition of EMTALA – this state law is pre-empted,” the guide says.
Lowell C. Brown, an attorney who has represented and advised hospitals accused of violating the EMTALA, said he has heard of hospitals in states with strict abortion laws that worried about how they would comply with state laws and federal law.
“Federal law is clear,” Brown said, adding that doctors and hospitals “are sort of between a rock and a hard place. ‘they don’t abide by state law.
Justice Department officials and abortion rights advocates are also evaluating other legal strategies to protect abortion rights, including protecting women who travel to states where procedures are legal and possibility for people to access pills that can cause abortions.
Idaho’s abortion laws have also faced challenges at the state level. Earlier this month, a divided Supreme Court in Idaho rejected an effort by Planned Parenthood to block an abortion law in state court.
After Garland announced the Idaho lawsuit, the state of Texas filed a motion seeking to block any similar effort there. The filing asks a judge to stop the federal government from using EMTALA to compel Texas hospitals and doctors to perform abortions to receive Medicare funds.