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Justice Dept. sues Idaho over near-total abortion ban coming Aug. 25

Lawsuit is Biden administration’s first legal action since Supreme Court overturned Roe v. Wade

On Aug. 2 Attorney General Merrick Garland announced the Justice Department would file suit against Idaho for its restrictive abortion law. (Video: The Washington Post)
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The Justice Department has filed its first lawsuit in the wake of a historic Supreme Court decision allowing states to outlaw abortion, arguing that a new Idaho law that would impose a near-total ban on the procedure violates a federal requirement to provide medical care when a pregnant person’s life or health is at stake.

Attorney General Merrick Garland said the lawsuit filed Tuesday is aimed at stopping Idaho’s “trigger” ban, which is set to take effect Aug. 25.

The Idaho law allows doctors to be criminally prosecuted for providing abortions, Garland said at a news conference Tuesday afternoon. He argued that it could conflict with federal law that says patients seeking emergency medical care at a hospital accepting Medicare funds are entitled to any lifesaving treatment.

The lawsuit cites several medical conditions that could require a doctor to perform an abortion for lifesaving reasons, including septic infections and ectopic pregnancies — when the fetus implants outside the uterus and the pregnancy cannot be viable.

“We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled to under federal law,” Garland said at a news conference.

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Idaho’s attorney general, Lawrence G. Wasden (R), disagreed with Garland’s reading of the Emergency Medical Treatment and Labor Act, declaring in a statement that the state law restricting abortions with few exceptions is allowed under the federal statute.

The state’s governor, Brad Little (R), called the lawsuit an “overreach” and said he would “defend Idaho’s laws in the face of federal meddling.”

“Our nation’s highest court returned the issue of abortion to the states to regulate — end of story,” Little’s statement read.

The lawsuit represents the Biden administration’s initial legal salvo as it tries to protect abortion rights, to some degree, after the June decision by the Supreme Court to overturn Roe v. Wade, the landmark case which had for five decades guaranteed a right to abortion.

It could be a harbinger of future suits to be filed by the Justice Department, since some other states also have laws that do not make exceptions to their abortion bans for the life or health of the woman.

But while many legal fights are expected to come out of the Supreme Court’s ruling, it is difficult to predict precisely where or how. Much will depend on how judges respond to initial cases like the one in Idaho, and how states choose to enforce their statutes.

Justice Department officials did not say Tuesday whether they plan to file similar lawsuits against any other states.

Abortion ban creates confusion around treatment of miscarriage, ectopic pregnancy

Garland argued that the legal issues at stake in the Idaho lawsuit are straightforward. By banning abortions even to women in medical emergencies, the lawsuit says, Idaho law violates that federal treatment law. And when state and federal laws are in conflict, federal law prevails, according to the Constitution.

The federal law was originally written to ensure that hospitals did not ignore seriously ill patients who could not pay for treatment, or dump them with other hospitals. Now, the Biden administration wants that same principle to apply to pregnant women facing serious health problems that could require terminating their pregnancies.

Associate Attorney General Vanita Gupta also faulted the Idaho law for putting the legal burden on doctors and nurses accused of performing abortions to prove that they did not violate the law. Gupta heads the Justice Department’s “reproductive rights task force,” a newly launched effort charged with deploying federal legal resources to stop abortion bans that could conflict with federal laws.

“The law places medical professionals in an impossible situation,” Gupta said. “They must either withhold stabilizing treatment … or risk felony prosecution and license revocation. The law will chill providers’ willingness to perform abortions in emergency situations and will hurt patients by blocking access to medically necessary health care.”

Abortion is now banned in these states. See where laws have changed.

After the Supreme Court’s decision, which came in Dobbs v. Jackson Women’s Health Organization, states across the country have tightened abortion restrictions. Pregnant women in several states have reported that doctors have been reluctant to provide them with appropriate medical treatment for fear of running afoul of those restrictions.

Shortly after the Dobbs decision, Garland signaled that the Justice Department was preparing to fight in court various abortion-related issues, from patients traveling from states where abortion is banned to states where the procedure is legal; to providing information about where abortions are available; to accessing pills that can induce abortions.

The attorney general has said that even in states where abortion is banned, abortion counseling must be allowed, calling it a “fundamental” principle of the First Amendment that “individuals must remain free to inform and counsel each other about the reproductive care that is available in other states.”

Another area that could see legal fights between the Biden administration and state governments is the availability of Mifepristone, often referred to as the abortion pill. Garland has said the department is ready to work with the Food and Drug Administration to ensure that people have access to the drug, and said state legislatures may not ban the pill based on a disagreement about its safety and efficacy — because that is the FDA’s job.

The attorney general has also said federal agencies “may continue to provide reproductive health services to the extent authorized by federal law,” an indication that there may be legal battles over what kind of reproductive health care may be provided by doctors working for the federal government in states that restrict or ban abortions.

Nancy Northup, president and chief executive of the Center for Reproductive Rights, an advocacy organization, hailed the lawsuit and said the Justice Department’s involvement fighting abortion bans across the country is crucial.

“The number of states enforcing radical bans and denying people life-saving care is growing rapidly,” Northup wrote in a statement. “We are already seeing pregnant people in dire situations being turned away from hospitals.”

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