BOISE, Idaho — A federal judge has issued a partial pause on Idaho's abortion law when it conflicts with the Emergency Medical Treatment and Labor Act. Doctors will not face criminal charges in these instances, as state law must yield to federal law.
The rest of Idaho's abortion laws will take effect Thursday.
In a 39-page order, U.S District Judge B. Lynn Winmill said that the law lacks clarity for providers to be able to preform an emergency abortion. Known as the "trigger law," a law that was made to take effect when Roe v. Wade fell, it outlines inherent criminal prosecution for doctors when providing an abortion, punishable by up to five years in prison.
The only exception to this law, the code says, is when an abortion can be preformed to prevent death, or when a survivor can provide a police report of rape or incest to police.
The DOJ sued the state of Idaho on Aug. 2, claiming the near-total abortion ban violated the Emergency Medical Treatment and Labor Act (EMTALA) in emergency medical situations. EMTALA requires doctors to stabilize patients in emergencies, which can include various medical procedures. Abortion can be used to resolve hemorrhaging, sepsis or ectopic pregnancies, a life threatening condition where the embryo develops outside the uterus and can rupture the fallopian tube.
There is no exception in the abortion law, Idaho code 18-622, for a health risk, which falls under the EMTALA umbrella.
Additionally, in a preliminary injunction hearing on Monday, the Idaho Attorney General's Office admitted in court that ectopic pregnancies are considered a real pregnancy -- thus, is covered under 18-622 -- and could not be resolved through abortion until the pregnant person is near death or dying.
Winmill said in his judgement that providers may delay care under this law until a patient is extremely close to death to avoid the criminal penalties, which subjects those patients to physical and emotional trauma.
"One cannot imagine the anxiety and fear she will experience if her doctors feel hobbled by an Idaho law that does not allow them to provide the medical care necessary to preserve her health and life," the order said.
Winmill goes on: "The clear and intended effect of Idaho’s criminal abortion law is to curb abortion as a form of medical care. This extends to emergency situations, obstructing EMTALA’s purpose. Idaho’s choice to impose severe and sweeping sanctions that decrease the overall availability of emergency abortion care flies in the face of Congress’s deliberate decision to do the opposite."
Winmill, in the order, also pointed to the notion that doctors from out of state may be discouraged from coming to Idaho over the law.
The state's argument to Winmill on Monday was that the law falls under EMTALA because it includes a section that allows doctors to use their "good faith" judgment to make a call on whether to perform an abortion or not, even though they risk being criminally charged and thrown in jail.
The judge asked many hypothetical questions about how close to death someone must be to have an abortion to save their life -- 50%, 5% -- but state attorney Brian Church continually just said he would refer his clients and doctors to the law -- a law that was seemingly unclear to the judge to begin with.
Monte Stewart, an attorney who was hired by the Idaho Legislature, repeatedly said in the hearing Monday that prosecutors could ignore the text of the law and focus on "the real world" when deciding to perform abortions, and that Idaho has no instances of "real abortions" that the DOJ was referring to -- but, in the judge's ruling, he noted several responses from Idaho doctors that pointed to the need for certain abortions.
"If the law does not mean what it says, why have it at all?" Winmill wrote. "In short, given the extraordinarily broad scope of Idaho Code § 18-622, neither the State nor the Legislature have convinced the Court that it is possible for healthcare workers to simultaneously comply with their obligations under EMTALA and Idaho statutory law."
The Idaho Democratic Party Chair Lauren Necochea issued a statement on the matter after the ruling:
"I am relieved to see the court take this step to ensure that every Idahoan receives necessary medical care in an emergency. Governor Little and Idaho's Republican legislators were warned about the harm their extreme abortion ban would cause to patients, but they didn't care. Under the GOP ban, a doctor can either risk prison time to provide care for a nonviable ectopic pregnancy or allow it to go untreated, causing life-threatening internal bleeding."
"Every pregnancy is unique and Idahoans deserve leaders who will protect their freedom to make intimate decisions about abortion care alongside their doctors and loved ones. There is not a single Republican on the ballot this November who has stood up for our reproductive freedoms. We must vote these dangerous, extreme politicians out of office before their cruel quest for control kills Idahoans."
The Idaho Republican Caucus issued a statement saying:
"Today a federal district court judge in Boise issued a limited injunction that applies to emergency room visits by pregnant women. This came in a case brought by the United States Department of Justice on behalf of the Biden administration and against Idaho and its abortion law.
The limitations on the injunction are important. The injunction applies only to cases of a pregnant woman in an emergency medical condition and then only when she arrives at one of Idaho's 39 emergency rooms receiving Medicare funding—and not any place else.
Despite these limitations, and because the federal district court rejected further limiting language required under the law, some of Idaho's preborn children may die because of this injunction, children whose lives the Idaho law otherwise would have protected. Particularly distressing is that the injunction uses Congressional language expressly written to protect the health of preborn children to expand the injunction's scope and thereby increase the risk of death for such children. Also distressing is that the Idaho federal district court decision got wrong this case's key legal issues despite having in front of it a Texas federal district court decision getting those same issues right.
Idahoans have a strong, shared concern for and high value on the life of Idaho's preborn children. The death of even one preborn child in these circumstances is a tragedy, yet such deaths are the purpose and consequence of the current federal administration's case against Idaho and the Idaho law. To protect the lives of as many of these children as possible, the Idaho Legislature will pursue all legal means to bring this injunction to an end as quickly as possible. The Idaho House Republican Caucus is confident that a lower or a higher appellate court will hold the federal administration's case to be without merit."
Alexis McGill Johnson, the president and CEO of Planned Parenthood Federations wrote:
"Anti-abortion lawmakers want to control our lives, our bodies, and our futures. While the abortion ban will take effect tomorrow, this ruling means that Idaho cannot ignore federal law–and that includes ensuring people can still receive abortions in hospitals in emergency situations. Planned Parenthood applauds this effort by the Department of Justice, and looks forward to ongoing action from the Biden administration to protect our rights, health, and bodily autonomy. We will continue to do all we can to protect vital health care and fight for the rights of the people of Idaho."
Rebecca Gibron, the CEO of Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky responded with:
"This is far from the end of our fight for reproductive justice in our state. The damage these laws have done to the rights of Idahoans reaches far beyond those in medical emergencies. All people deserve access to abortion care: period."
Attorney General Merrick Garland issued a statement:
“Today’s decision by the District Court for the District of Idaho ensures that women in the State of Idaho can obtain the emergency medical treatment to which they are entitled under federal law. This includes abortion when that is the necessary treatment. As the District Court ruled, a state law that attempts to prevent a hospital from fulfilling its obligations under EMTALA violates federal law and the Supremacy Clause of the U.S. Constitution,” said Attorney General Merrick B. Garland.
“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law.
“The Department disagrees with yesterday’s decision by the District Court for the Northern District of Texas, which preliminarily enjoins the Centers for Medicare & Medicaid Services’ July 11, 2022 guidance on EMTALA and Secretary Becerra’s accompanying letter as applied to the plaintiffs in that litigation. We are considering appropriate next steps," he said.
Abortion is still nearly illegal in Idaho, however, and the trigger law "pause" will be in effect until a permanent judgment is issued.
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