Justice Department sues Idaho over abortion law in first legal challenge since Roe’s reversal

Washington — The Justice Department has filed a lawsuit challenging an Idaho law that outlaws nearly all abortions in the state, Attorney General Merrick Garland announced Tuesday, marking the first court fight mounted by the Biden administration after the Supreme Court eliminated the constitutional right to an abortion in June.

In a press conference announcing the new lawsuit, Garland said Idaho’s law, which was enacted in 2020 and takes effect Aug. 25, violates the Constitution and is preempted by federal law, as it is in conflict with the Emergency Medical Treatment and Labor Act (EMTALA).

The Justice Department is asking a federal district court in Idaho to invalidate the so-called trigger law and block the state from enforcing it against medical providers. Idaho’s attorney general’s office did not immediately return a request for comment.

“In the days since the Dobbs decision, there have been widespread reports of delays and denials of treatment to pregnant women experiencing medical emergencies. Today, the Justice Department’s message is clear: It does not matter what state a hospital subject to EMTALA operates in. If a patient comes to the emergency room with a medical emergency jeopardizing the patients’ life or health, the hospital must provide the treatment necessary to stabilize that patient,” Garland said. “This includes abortion when that is the necessary treatment.”

Garland said that any state law that prevents a hospital from fulfilling obligations under EMTALA runs afoul of federal law, and the Idaho statute “seems on its face” to directly conflict with it. The prohibition “will threaten the health of women who come into the emergency room in a really dire medical situation,” he added

AG Garland Announces Litigation To Protect Access To Reproductive Healthcare
Attorney General Merrick Garland speaks during a news conference at the US Department of Justice on Aug. 2, 2022 in Washington, DC

Drew Angerer/Getty Images


Idaho’s law makes it a felony to perform an abortion in most circumstances, and the Justice Department argues in its suit that the measure makes it a criminal offense for doctors to comply with EMTALA, which requires health care providers that receive Medicare funds to provide necessary stabilizing treatment to a mother whose health is at risk and must undergo an emergency abortion.

Circumstances that may require a doctor to provide an abortion to stabilize a pregnant mother include ectopic pregnancy, severe preeclampsia or complication from pregnancy that threatens septic infection or hemorrhage, the Biden administration said.

“Idaho’s law would make it a criminal offense for doctors to provide the emergency medical treatment that federal law requires,” Garland said. “Although the Idaho law provides an exception to prevent the death of a pregnant woman, it includes no exception for cases in which the abortion is necessary to prevent serious jeopardy to the women’s health.”

The lawsuit against the state of Idaho is the first brought by the Justice Department since the Supreme Court overturned Roe v. Wade in late June, returning abortion policy to elected officials and clearing the way for state lawmakers to impose more stringent restrictions or outright bans on abortion.

In response to the high court’s ruling, President Biden signed an executive order last month that directed his administration to safeguard reproductive rights.

Following Mr. Biden’s order, Health and Human Services Secretary Xavier Becerra issued new guidance to hospitals notifying them that they must provide emergency abortions if the life of the mother is at risk, as requirements under EMTALA preempt state abortion bans.

The Justice Department and White House also convened for the first time Friday a meeting of private law firms, bar associations, law professors and public interest groups to push for legal representation to help protect access to reproductive health services.

Associate Attorney General Vanita Gupta, who heads the Justice Department’s response to the Supreme Court ruling, said Tuesday that the Idaho law at issue would “chill” providers’ willingness to provide abortions when deemed medically necessary and warned it “presumptively criminalizes all abortions.”

The statute places the burden, Gupta explained, on doctors who have to prove why the abortion procedure is necessary.

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