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DOJ Sues Idaho Over Abortion Ban In First Legal Action Since Roe v Wade Overturned

Court Filing Argues Idaho Law Is In Violation of Federal Law


The United States Department of Justice (DOJ) has filed a lawsuit against the state of Idaho arguing that the state’s near-absolute abortion ban is in violation of federal law.

U.S. Attorney General Merrick Garland told reporters at a press conference that the DOJ seeks a declaratory judgment because the Idaho law conflicts with — and is preempted by — the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals that receive federal Medicare funds to “provide necessary stabilizing treatment” to any patient who arrives at their departments while experiencing a medical emergency.

In some circumstances, the medical treatment that a state may characterize as an “abortion” is necessary emergency stabilizing care that providers are required to render under EMTALA, the DOJ complaint states.

“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 woman’s health,” Garland said. “Moreover, it would subject doctors to arrest and criminal prosecution, even if they performed an abortion to save a woman’s life. And it would then place the burden on the doctors to prove that they are not criminally liable.”

According to the DOJ filing, Idaho’s abortion law will prevent doctors from preforming abortions even when a doctor determines abortion is the medically necessary treatment to prevent severe risk to the woman’s health — even in cases where denial of care would likely result in death for the woman.

The lawsuit seeks a declaratory judgment that Idaho’s law violates the supremacy clause of the U.S. Constitution.

Danita Gupta, Associate Attorney General and head of the DOJ’s Reproductive Rights Task Force, spoke at the press conference and told reporters that the Idaho law presumptively criminalizes all abortions. She said the law places the burden on physicians to prove at trial (following arrest and indictment) that they are not criminally liable.

“Physicians can only do so by proving that the abortion they performed was necessary for one of two reasons: to prevent the death of a pregnant woman, or in response to a case of rape or incest that was previously reported to the police, or in the case of a minor to child protective services,” she said. “Physicians who do not meet this burden face two to five years imprisonment and revocation of their medical license. And the law provides no defense whatsoever for when the health of the pregnant patient is that issue.”

The legal action is the first taken by the DOJ since the U.S. Supreme Court struck down Roe v. Wade in June. Since then, multiple states have enacted restrictive abortion laws.

Garland said the DOJ will closely scrutinize state abortion laws to ensure they are in compliance with federal law.

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