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Justice Department sues Idaho over abortion ban

Garland says Idaho law 'on its face' conflicts with federal law

Attorney General Merrick Garland said the Idaho law conflicts with federal law requiring treatment, including abortion, to stabilize a patient.
Attorney General Merrick Garland said the Idaho law conflicts with federal law requiring treatment, including abortion, to stabilize a patient. (Tom Williams/CQ Roll Call file photo)

The Justice Department is suing Idaho over the state’s abortion ban, saying it violates a federal law requiring hospitals to provide stabilizing treatment to patients when necessary, including abortion.

Idaho’s six-week abortion ban, which takes effect Aug. 25, allows for abortions to prevent the death or “substantial and irreversible impairment” of the mother, and when the pregnancy is the result of rape or incest.

Under the state’s law, physicians who perform abortions could face criminal penalties including jail time unless they can show the procedure was necessary to save the life of the mother. It doesn’t allow physicians to avoid liability in cases where the abortion was necessary to protect the health of the mother and death was not imminent.

Those narrow exemptions prevent physicians from following the “Emergency Medical Treatment and Labor Act,” which requires anyone coming to an emergency department be stabilized and treated, the DOJ said in a lawsuit filed Tuesday with the U.S. District Court for the District of Idaho Southern Division.

“Every hospital that receives Medicare funds must provide necessary, stabilizing treatment to a patient who arrives in an emergency room suffering from a medical condition that could place their life or health in serious jeopardy,” Attorney General Merrick Garland said at a news conference. “In some circumstances, the medical treatment necessary to stabilize the patient’s condition is abortion.”

The lawsuit is the first filed by the DOJ challenging a state abortion ban since the Supreme Court overturned Roe v. Wade, the landmark ruling that established the right to an abortion for 50 years.

The DOJ is likely to bring action against similar state laws under the argument that they violate the Emergency Medical Treatment and Labor Act.

“We have in front of us a statute that seems on its face to directly conflict with EMTALA,” Garland said.

“It’s about to take effect, and that will threaten the health of women who come to the emergency room in a really dire medical situation,” Garland said.

The DOJ is asking for a declaratory judgment that Idaho’s law violates the supremacy clause of the Constitution, which states that federal law preempts state law. It is also seeking a declaratory judgment stating Idaho can’t prosecute or revoke the licenses of medical providers performing abortions to stabilize patients in emergency situations.

The DOJ is asking the court for a temporary injunction to block the state from enforcing parts of the law that it argues conflict with federal law.

Experts say abortion bans that threaten physicians with criminal penalties have created confusion, with some providers delaying abortions in instances where they normally would have performed one to prevent illness or death.

A bipartisan group of senators introduced legislation Monday that would prohibit states from restricting abortions or imposing an “undue burden” on abortion access prior to the point where a fetus can survive outside of the womb.

The legislation, sponsored by Sens. Tim Kaine, D-Va., Lisa Murkowski, R-Alaska, Kyrsten Sinema, D-Ariz., and Susan Collins, R-Maine, would allow states to enact restrictions on post-viability abortions, except when necessary to protect the life or health of the mother.  

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