On Aug. 2, the U.S. Department of Justice (DOJ) fired the opening salvo in an effort to prevent red-state governments from interfering with the care and safety of pregnant women in hospital emergency rooms. The DOJ filed its first-in-the-nation suit against an Idaho law preventing women from receiving necessary emergency care when their lives are threatened by dangerous pregnancy complications.
A federal judge in Idaho will hear argument on the case today and likely make a ruling before Aug. 25, when a total abortion ban is set to go into effect in the state. The Idaho law makes it a felony offense, with a mandatory minimum prison sentence of two years, for anyone to perform or assist with an abortion.
A doctor can be prosecuted, even if an abortion procedure was essential to save the life of the emergency room patient. The doctor can escape prison and license revocation only by convincing a jury that the abortion was necessary to prevent the death of the pregnant woman or if the pregnancy resulted from rape or incest that was reported to law enforcement.
DOJ claims the Idaho law conflicts with, and is preempted by, a federal law called the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals receiving Medicare funding to provide emergency care to those who come to their emergency rooms with conditions that seriously jeopardize their health. Emergency conditions include dangerous pregnancy complications such as an ectopic pregnancy that could cause a woman to bleed to death, sepsis that could result in organ failure and life-threatening eclampsia. The DOJ correctly asserts that Idaho’s total abortion ban “preemptively criminalizes all abortions…even where a denial of care will likely result in the death of the patient.” It seeks a court ruling that the law cannot apply in the emergency room setting.
It is not clear why the DOJ selected Idaho as the test case for the EMTALA suit, but the state has certainly been a hotbed for anti-abortion legislation. It currently has three laws on the books — the total abortion ban, a law prohibiting an abortion after detection of a fetal heartbeat and a Texas-style bounty law that gives the abortion patient and her family members the right to each recover a minimum amount of $20,000 from an abortion provider.
Planned Parenthood has filed suit against all three of the laws in a case pending before the Idaho Supreme Court. That court initially stayed enforcement of the latter law but decided on a 3-2 vote on Aug. 12 to allow all three laws to go into effect.
All the bills were poorly drafted, thrown into the legislative hopper for the purpose of intimidating doctors and gaining votes. They were rushed through with little medical testimony. As with similar measures enacted in other red states, practically no consideration was given to the serious problems that arise for doctors, lawyers and the courts from the use of sloppy, ambiguous wording.
The abortion issue has roiled the political landscape in Idaho. The Idaho Republican Party, recently commandeered by its extremist faction, adopted a platform plank last month affirming “that abortion is murder from the moment of fertilization.” That was too much even for the long-time director of a prominent Idaho pro-life group.
Hundreds of medical professionals have formed a group called the Idaho Coalition for Safe Reproductive Health Care to lobby for changes in the abortion laws to protect against intimidating and criminalizing doctors and their support staff.
Abortion, including the EMTALA suit, will figure prominently in Idaho’s November general election. Although the GOP has a virtual stranglehold on elected offices at all levels in the state, many women will vote their conscience in the privacy of the voting booth. Most have either experienced serious pregnancy complications or know women who have. They clearly understand the stakes in the election.
The DOJ suit has gained the attention of interested parties across the country, including a group of 20 state attorneys general that weighed in with a friend of the court brief in support of the DOJ.
The federal judge handling the case is an experienced and well-regarded jurist who will make a well-informed decision. His initial decision will likely be confined to the issue of whether or not to stay enforcement of the total abortion ban. Although prediction of the outcome of a court case is risky business, it is most likely that the total abortion ban will be stayed in the emergency room setting until the case is ready for a ruling on the merits. That ruling will inform decisions in other states.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.