The overturning of Roe v. Wade presaged a state-by-state battle over the legality of abortion, and those fights have arrived — but the federal government isn’t sitting them out.
In early July, the Biden administration said the Department of Health and Human Services would take action to expand access to “a full range of reproductive health services” in addition to protecting Obamacare, which guarantees coverage of “women’s preventive services.” Now, several states are implementing abortion bans that the administration believes violate federal rules.
On Aug. 2, the Justice Department filed a lawsuit challenging Idaho’s near-total ban on abortion, which, the administration believes, doesn’t include all the necessary exceptions. It does allow abortions to save the life of the mother, but it doesn’t include an exception, for example, to allow the doctor to preempt self-harm by the patient.
“The suit seeks to hold invalid the state’s criminal prohibition on providing abortions as applied to women who are suffering medical emergencies,” Attorney General Merrick Garland said. “Under federal law, known as the Emergency Medical Treatment and Labor Act, every hospital that receives Medicare funds must provide necessary stabilizing treatment to a patient who arrives at an emergency room suffering from a medical condition that could place their life and health in serious jeopardy.”
“In some circumstances, the medical treatment to stabilize a patient is an abortion,” Garland said.
That act, according to the federal government, would preempt any state law that conflicts with the guidance. An emergency medical condition, as defined by EMTALA, may include ectopic pregnancy, complications of pregnancy loss, and emergent hypertensive disorders.
Associate Attorney General Vanita Gupta said, “One critical focus of the Reproductive Rights Task Force has been assessing the fast-changing landscape of state laws and evaluating potential legal responses to infringements on federal protections. Today’s lawsuit against the state of Idaho for its near-absolute abortion ban is the first public example of this work.”
The DOJ’s suit is not the first against Idaho. On July 27, Planned Parenthood Great Northwest also filed a lawsuit against the trigger ban. The branch’s executive, Rebecca Gibron, said, “In a single moment, Idahoans’ right to control their own bodies, lives, and personal medical decisions was taken away, but we will not stand for it. We will never back down. We will never stop fighting,” in a press release following the lawsuit.
According to Idaho State Code §18-622, passed in 2020 to come into effect 30 days after overturning Roe, criminal abortion shall be a felony punishable by a sentence of imprisonment of no less than two years and no more than five years.
The trigger law states that if a physician, in good faith medical judgment, determines that an abortion is necessary to prevent the pregnant woman’s death, he or she must “provide the best opportunity for an unborn child to survive” unless doing so would further risk the life of the mother.
One area of debate has been centered on concerns that doctors will no longer be able to treat life-threatening complications such as ectopic pregnancies. But defenders of these new laws point out that that’s a misunderstanding of the relevant procedures. According to the American College of Obstetrics and Gynecologists, treatment for ectopic pregnancies is not the same as abortion. Instead, it states the condition is treated with laparoscopic surgery.
Republican Gov. Brad Little of Idaho said the DOJ’s lawsuit is an overreach. “Our nation’s highest court returned the issue of abortion to the states to regulate — end of story,” he said in a statement.
Idaho Attorney General Lawrence Wasden also issued a statement following the suit: “Instead of complying with the requirements of this provision and reconciling Idaho’s law with EMTALA, or even attempting to engage Idaho in a meaningful dialogue on the issue, the federal government has chosen to waste taxpayer dollars on an unnecessary lawsuit.”
The Department of Justice has not indicated whether it plans to file suit against other states.
