Justice sues Idaho over six-week abortion ban

The Justice Department filed a lawsuit on Tuesday challenging Idaho’s six-week abortion ban.

The department argued that Idaho’s law conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA), a law that requires providers to offer medically stabilizing treatment in an emergency, even if that care is an abortion. 

The lawsuit seeks an injunction to prevent enforcement of the law in situations where an abortion is necessary for stabilizing treatment for an emergency medical condition. The DOJ said the law will likely force providers to withhold care based on a “well-founded fear of criminal prosecution.”

The Idaho “trigger” law takes effect Aug. 25 and would subject doctors to arrest and criminal prosecution for performing an abortion, even if a patient is suffering from a medical emergency like ectopic pregnancy, complications of miscarriage or severe preeclampsia. 

There are exceptions for rape, incest and for saving the life of the mother, though a rape or incest victim would have to provide a copy of a police report to the physician who would perform the procedure.

“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 Garland said during a press briefing on Tuesday announcing the suit, in reference to Roe v. Wade and Planned Parenthood v. Casey, which were overturned by the Supreme Court in June. 

“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,” Garland added.

In a statement, Idaho Attorney General Lawrence Wasden (R) said the federal EMTALA law does not completely preempt state law and he was disappointed the Biden administration decided to sue.

“It’s unfortunate that, instead of sitting down with the State of Idaho to discuss the interplay between its abortion laws and EMTALA, the U.S. Department of Justice has chosen to file a politically motivated lawsuit,” Wasden said.

“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.”

The lawsuit marks the first major litigation against a state abortion ban since the Supreme Court overturned Roe v. Wade. 

The Biden administration last month issued guidance reaffirming that EMTALA protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations. 

EMTALA has been on the books for over 30 years. Under the law, if an emergency medical condition is found to exist, the hospital must provide available stabilizing treatment or an appropriate transfer to another hospital that has the capabilities to provide stabilizing treatment. 

“The law will chill providers willingness to perform abortions in emergency situations, and will hurt patients by blocking access to medically necessary health care,” said Associate Attorney General Vanita Gupta, who leads DOJ’s reproductive rights task force.

“We know that these are frightening and uncertain times for pregnant women and their providers and the Justice Department through the work of its task force is committed to doing everything we can to ensure continued lawful access to reproductive services,” Gupta said.

Updated at 4:32 p.m.