U.S. Department of Justice sues Idaho over abortion trigger ban

Attorney General Merrick Garland says law violates federal emergency medical treatment act

By: - August 5, 2022 4:08 pm

Demetrius Freeman-Pool/Getty Images.

The U.S. Department of Justice is suing the state of Idaho over the state’s trigger law that will ban nearly all abortions.

The lawsuit argues that Idaho’s trigger ban on abortion is unconstitutional. According to the Justice Department’s argument, the state law conflicts with a federal law that requires hospitals to provide medical care to stabilize all patients who come to the hospital with a medical emergency.

That federal law — the Emergency Medical Treatment and Labor Act — applies to all hospitals that receive federal Medicare payments, which is effectively all U.S. hospitals with emergency rooms. The lawsuit says Idaho’s trigger ban on abortion violates the Supremacy Clause of the U.S. Constitution because it is in conflict with the act.

U.S. Attorney General Merrick Garland announced the lawsuit in a press conference earlier this week, saying abortion is emergency stabilizing care in some situations. According to the lawsuit, Idaho’s trigger law places health care providers in an “untenable position of risking criminal prosecution under state law or subjecting themselves to enforcement actions under federal law.”

Violating EMTALA can result in a hospital losing its ability to receive Medicare payments — one of the main sources of revenue for hospitals.

“In some circumstances, the medical treatment necessary to stabilize the patient’s condition is abortion,” Garland said at the press conference. “This may be the case, for example, when a woman is undergoing a miscarriage that threatens septic infection or hemorrhage or is suffering from severe preeclampsia.”

Garland said Idaho’s law will make it a felony for doctors to provide emergency medical treatment that is required by federal law, and while the trigger law includes language that creates an affirmative defense when an abortion is performed to prevent a pregnant person’s death, it does not include an exception if an abortion is necessary to prevent “serious jeopardy” for a person’s health.

“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,” Garland said.

Idaho Attorney General Lawrence Wasden said in a statement that the Department of Justice did not attempt to “engage Idaho in a meaningful dialogue on the issue” prior to filing the lawsuit, and called it a waste of taxpayer dollars.

“It’s unfortunate that, instead of sitting down with the state of Idaho to discuss the interplay between its abortion laws and EMTALA, the U.S. Department of Justice has chosen to file a politically motivated lawsuit,” Wasden said in the statement. “Contrary to the carefully edited assertion in paragraph 25 of the department’s complaint that Idaho’s laws are preempted, EMTALA actually states: ‘The provisions of this section do not preempt any state or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.’”

In the lawsuit, the Department of Justice said it reached out to the Idaho attorney general’s office on Friday, July 29, and did not receive a “substantive response.”

Idaho Gov. Brad Little issued a statement Tuesday afternoon calling the lawsuit another example of federal overreach.

“Here in Idaho, we are proud that we have led the country in protecting preborn lives,” Little said in the statement. “I will continue to work with (Wasden) to vigorously uphold state sovereignty and defend Idaho’s laws in the face of federal meddling.”

The lawsuit also includes a request for a permanent injunction that would prohibit Idaho from enforcing the law against health care providers who administer abortions as emergency treatment required by federal law, Garland said.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University. Moseley-Morris started her journalism career at the Moscow-Pullman Daily News, followed by the Lewiston Tribune and the Idaho Press.