Federal government challenges Idaho on its abortion law
BOISE, Idaho — The Justice Department on Tuesday filed a lawsuit that challenges this state’s restrictive abortion law, arguing that it conflicts with a federal law requiring doctors to provide pregnant women medically necessary treatment that could include abortion.
The federal government brought the lawsuit seeking to invalidate the state’s “criminal prohibition on providing abortions as applied to women suffering medical emergencies,” Attorney General Merrick Garland said.
The announcement is the first major action by the Justice Department challenging a state trigger law since the Supreme Court overturned Roe v. Wade in June. The court’s decision has led some states to enact restrictive abortion laws and is likely to lead to abortion bans in roughly half the states in the U.S.
The department brought the suit because federal prosecutors believe Idaho’s law would force doctors to violate the Emergency Medical Treatment and Labor Act, a federal law that requires anyone coming to a medical facility for emergency treatment to be stabilized and treated, Garland said.
“Idaho’s law would make it a criminal offense for doctors to provide the emergency medical treatment that federal law requires,” he said.
Idaho, like many Republicanled states, has several anti-abortion laws on the books, creating a legal quagmire now that the Supreme Court has overturned Roe.
The law targeted by the Justice Department criminalizes all abortions, subjecting anyone who performs or attempts to perform the procedure to a felony punishable by between two and five years in prison.
People who are charged under the law could defend themselves against the criminal allegations by arguing that the abortion was done to save a pregnant person from death or that it was done after the pregnant person reported that they were a victim of rape or incest to a law enforcement agency — and provided a copy of that report to the abortion provider.
“Under the Idaho law, once effective, any state or local prosecutor can subject a physician to indictment, arrest and prosecution merely by showing that an abortion has been performed, without regard to the circumstances,” the department wrote in the lawsuit. “The law then puts the burden on the physician to prove an ‘affirmative defense’ at trial.”
Advocates for sexual assault survivors have said the rape and incest exception is essentially useless because Idaho’s public records law doesn’t allow law enforcement agencies to release reports when a case is still under investigation — a process that generally takes weeks or months.
Republican Gov. Brad Little said the Supreme Court gave states the ability to regulate abortion, “end of story.” He promised to work with state Attorney General Lawrence Wasden to defend the law.
The U.S. Health and Human Services Department last month informed hospitals that they must provide abortion services if the life of the mother is at risk, saying federal law on emergency treatment guidelines preempts state abortion bans if the bans don’t have adequate exceptions for medical emergencies.
In response, the state of Texas sued the federal government, contending that the guidance from the Biden administration is unlawful and that the Emergency Medical Treatment and Labor Act does not cover abortions. That case is pending.