The federal government’s challenge represents one of its most aggressive moves to preserve abortion rights since the Supreme Court was overthrown Roe v. Wade in June. The lawsuit followed weeks of complaints from Democratic lawyers and elected officials that the government has not done enough to push back as access to abortion has crumbled in nearly a dozen states.
This particular case — one of many occurring across the country — concerns whether states enacting near-total abortion bans are anticipating the Emergency Medical Treatment and Labor Act, known as EMTALA. That decades-old federal law requires health professionals to provide treatment that stabilizes a patient experiencing a medical emergency, and the Biden administration issued guidelines in July warning doctors and hospitals that EMTALA applies even if the required treatment involves a abortion is – regardless of state law dictates.
The case is being closely watched, with attorneys general from more than half of U.S. states filing “friends-of-the-court” statements: Red states side with Idaho and blue states side with government- Biden.
However, Wednesday’s ruling still allows Idaho to ban almost all abortions except in cases of rape, incest or threats to the mother’s life. It only prevents prosecutors from suing doctors if they perform an abortion for a patient in a medical emergency and cannot prove that the surgery was necessary to save the patient’s life.
The state is expected to appeal the ruling to the 9th Circuit Court of Appeals, which has become more conservative in recent years and may not be inclined to uphold the decision.
By contrast, the decision in Idaho also comes the day after a Texas federal judge appointed by former President Donald Trump, blocked the guidance of the Biden administration on abortion in medical emergencies within the state, siding with state officials who claimed it was an illegal “abortion mandate” and did not give enough weight to the needs of “unborn children.”
The DOJ is expected to appeal that decision to the conservative 5th Circuit Court of Appeals, and both cases could eventually make their way to the Supreme Court.
But the Idaho ruling could force some states to consider new abortion restrictions in summer special sessions and when lawmakers return early next year to broaden their medical emergency exemptions to avoid a lawsuit — adhering to federal guidelines protecting doctors who perform abortions when patients’ health, not just their lives, are at risk.
“Some will go ahead with sweeping abortion bans no matter what the court says and hope the Supreme Court eventually backs them,” said Jeff Dubner, an attorney with the Democracy Forward advocacy group that represents state and national medical groups in the case. “But if courts make it clear that EMTALA is the law of the land and gives priority to such laws, states must respect that.”
The case is also another sign that medical workers caring for pregnant patients are getting louder and more influential as states grapple with how far to roll back abortion rights. During a hearing on Monday, Judge Winmill and attorneys for the Department of Justice repeatedly referred to testimonies filed by Idaho OB-GYNs and warned that the new law would scare doctors from performing abortions in medical emergencies, affecting the mother’s morality. state would deteriorate.
“Doctors are risk averse. It’s in the nature of their profession,” Winmill said, adding that he feared what would happen in cases where there is a threat of “serious medical injury if the abortion is not performed” – including organ failure, sepsis, stroke or infertility – but which are not clearly life-threatening.
“We know this is more than just a hypothetical concern,” he said, pointing to the doctors’ written testimony.
Brian Netter, a lawyer for the Biden administration, leaned on this line of reasoning during pleadings, warning that unless the law is blocked, doctors may be hesitant to treat people in an emergency because of the threat of prosecution, and even brief delays in care can lead to severe disabilities.
“The provider’s fear and unease is real and widespread,” he said. “Lives, livelihoods and health are certainly at stake. The need for judicial intervention is urgent.”
Monte Stewart, the attorney representing Idaho’s lawmakers, pushed this back, telling the court Monday that he would advise concerned doctors to “go ahead and use your best medical judgment and not fear prosecution.” adding that he gives that advice “without the slightest heartburn and without doubting myself.”
The judge seemed skeptical.
“It’s not much comfort to a doctor that there is a prosecutor who may or may not enforce it,” Winmill said. The legislature would not have passed the law unless they intended to enforce it.”
