The Washington PostDemocracy Dies in Darkness

Judge to rule by Wednesday on federal challenge to Idaho abortion ban

The Justice Department argues that federal law requires doctors to provide “health-stabilizing” care.

Attorney General Merrick Garland says a near-total ban on abortion in Idaho violates federal requirements. (Evelyn Hockstein/Reuters/Bloomberg News)

A federal judge in Idaho will rule by Wednesday on whether a near-total ban on abortion can take effect in the state, following a Justice Department lawsuit that says the statute violates a federal requirement to provide medical care when a pregnant person’s life or health is at stake.

The case marks the Justice Department’s first attempt to fight a strict abortion ban in court following the Supreme Court decision in June that overturned Roe v. Wade, upending the right to terminate a pregnancy that had been enshrined in federal law for nearly 50 years.

Idaho’s “trigger” law, which is set to take effect Thursday, bans abortions except in cases involving rape or when a woman’s life is in danger. There is no exception if a patient faces nonlethal health risks, such as a stroke or organ damage, by continuing the pregnancy.

U.S. District Judge B. Lynn Winmill said he would decide by Wednesday whether the law can go into effect on Thursday as it is written.

A federal judge expressed concerns that Idaho's abortion ban could discourage doctors from providing emergency care when a pregnant person’s health is at stake. (Video: Reuters)

Since end of Roe v. Wade, more than 1 in 3 U.S. women have lost abortion access

Justice Department lawyers have hinged their lawsuit on their interpretation of a 1986 law that has rarely been associated with abortion in courts: The Emergency Medical Treatment and Active Labor Act. They say the law, known as EMTALA, requires that hospitals participating in the federally funded Medicare program provide necessary, health-stabilizing treatment to all patients, even if that treatment is an abortion.

Idaho responded that the Justice Department’s attempt to block parts of its abortion law should be considered federal overreach since the Supreme Court ruled that states can set their own abortion restrictions under Dobbs v. Jackson Women’s Health Organization.

EMTALA is intended to enshrine a doctor’s obligation to treat seriously ill patients and to ensure that hospitals do not ignore anyone who needs lifesaving or life-stabilizing treatment but cannot afford it.

The law does not mention abortion, but Attorney General Merrick Garland argued in his lawsuit this month that refusing to perform an abortion if it could save a woman’s life or protect her health would violate EMTALA.

Experts described the approach as a novel legal strategy that highlights how few tools the Biden administration has to try to blunt the national impact of overturning Roe v. Wade. Even if the Justice Department wins this case in court, the experts noted, the judge’s ruling would only protect access to abortion in extreme and rare circumstances when a pregnant patient’s health is at stake. A legal victory would not have any impact on the ability to terminate an unwanted pregnancy that does not pose a significant health risk. Under the Dobbs ruling, states are largely free to ban such procedures.

“I think EMTALA is a real sweet spot for the administration on expanding abortion access,” said Lawrence Gostin, a professor of global health law at Georgetown University, who said he lobbied people he knows in the Biden administration to use the federal statute. “Biden’s options are limited. He cannot overturn the Dobbs decision.”

Winmill, who was appointed to the federal bench in 1995 by President Bill Clinton, opened the hearing Monday morning by making a similar point to lawyers on both sides: that the case would not serve as a broad debate about whether abortion should be permitted in the country.

Dobbs is the law of the land here,” Winmill said.

Idaho’s top court allows strict abortion ban to kick in

The judge attempted to focus the hearing on whether Idaho’s law conflicts with the federal EMTALA requirements — and whether the federal and state laws can coexist in the ways they are written.

The Justice Department also objected to an element of the Idaho legislation that it said allows authorities to arrest a health-care professional involved in performing an abortion, putting the onus on that person to prove in court that the abortion met the criteria for one of the exceptions.

“It would subject doctors to arrest and criminal prosecution even if they perform an abortion to save a woman’s life,” Garland said at a news conference earlier this month. “And it would then place the burden on doctors to prove that they are not criminally liable.”

Lawyers representing Idaho said Monday that medical professionals acting in good faith would not be prosecuted for performing an abortion on a seriously ill patient, though Winmill and the Justice Department lawyers seemed skeptical.

The judge presented Idaho’s lawyers with two hypothetical medical situations during the nearly two-hour hearing. In the first, he asked what would happen if a doctor called them asking for legal advice about performing an abortion on a woman who had a 50-50 chance of dying without one. In the second hypothetical, the judge said, the patient being treated wouldn’t die without an abortion, but would be at high risk for a stroke or organ damage if her pregnancy continued.

Abortion bans complicate access to drugs for cancer, arthritis, even ulcers

Brian Church, deputy attorney general for Idaho, responded to the judge’s first hypothetical by saying state lawyers would tell the doctor to use her best medical judgment. To the second hypothetical, he said he would tell the doctor what the statute states.

Monte N. Stewart, an attorney speaking on behalf of the Idaho House of Representatives, suggested that the state would not hire prosecutors who would attempt to prosecute doctors who performed an abortion on a seriously ill woman.

The judge pushed back against that argument.

“The concern is that real world events are very hard to predict, but the text of the law is very clear,” Winmill said.

While this is the first time the Biden administration has argued in court that EMTALA protects a right to an abortion in certain instances, it has previously attempted to require hospitals that receive Medicare funds to perform abortions that would protect a patient’s health.

In July, the Centers for Medicare and Medicaid Services — the federal office charged with enforcing EMTALA — issued guidance to hospitals saying that the statute preempts any state law that bans performing an abortion when a woman’s health is at risk.

“When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” the guidance states.

Lowell C. Brown, an attorney who has represented and provided guidance to hospitals accused of violating EMTALA, said he has heard from hospitals in states with strict abortion laws that are concerned with how they would adhere to state laws and the federal statute.

“Federal law is clear,” Brown said, adding that doctors and hospitals “are sort of between a rock and a hard place. They have to comply with federal law, but they are facing prosecution if they do not comply with state law.”

Justice Department officials and abortion rights advocates are also weighing other legal strategies to protect abortion rights, including protecting women who are traveling to states where the procedures are legal and ensuring that people have access to pills that can induce abortions.

President Biden signed an executive order on Aug. 3 designed to help patients travel for abortions. (Video: The White House)

Idaho’s abortion laws have also faced challenges at the state level. Earlier this month, a divided Idaho Supreme Court rejected a Planned Parenthood effort to block an abortion law in state court.

After Garland announced the Idaho lawsuit, the state of Texas filed a motion seeking to head off any similar effort there. The filing asks a judge to prevent the federal government from using EMTALA to require Texas hospitals and doctors to perform abortions for them to receive Medicare funds.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.