Justice Dept. sues Idaho over abortion trigger law
In Kansas, voters may allow state to increase restrictions
BOISE, Idaho — The Justice Department on Tuesday filed a lawsuit that challenges Idaho’s restrictive abortion law, arguing 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 country.
The DOJ 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,” Garland said.
Idaho, like many Republican-led states, has several anti-abortion laws on the books, creating a legal quagmire following the Supreme Court’s recent ruling.
The law targeted by the Justice Department criminalizes all abortions, subjecting anyone who performs or attempts to perform an abortion to a felony punishable by between two and five years in prison.
People charged under the law could defend themselves against the criminal allegations by arguing the abortion was done to save a pregnant woman from death, or that it was done after the pregnant woman reported being 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 of Justice 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 record law doesn’t allow law enforcement agencies to release reports when a case is under investigation — a process that generally takes weeks or months.
Dr. Caitlin Gustafson, a family physician, and a regional Planned Parenthood organization have sued over the abortion ban in the Idaho Supreme Court, which is expected to hear arguments in the case Wednesday. In the lawsuit, Gustafson contends that the exception for medical emergencies is vague and impossible to interpret.
“It would be very difficult, if not impossible, for me to implement the medical exception and provide care to a pregnant person whose life may be at risk,” wrote Gustafson, noting that some
serious pregnancy-related medical conditions such as preeclampsia can potentially cause death.
Idaho Gov. Brad Little, a Republican, said the U.S. Supreme Court gave states the ability to regulate abortion, “end of story.” He promised to work with the state’s attorney general, Lawrence Wasden, to defend the law.
Wasden, also a Republican, said the lawsuit was “politically motivated.”
Elsewhere, Kansas is holding the nation’s first test of voter feelings about
the overturning of Roe v. Wade, as people statewide voted Tuesday on whether to allow their conservative Legislature to further restrict or ban abortion.
The referendum on the proposed anti-abortion amendment to the Kansas Constitution is being watched as a barometer of liberal and moderate voters’ anger over the court’s June ruling. But the outcome might not reflect broader national sentiments, given how conservative Kansas is, and its high GOP voter turnout
in recent August primaries.
Supporters of the measure wouldn’t say before the vote whether they intend to pursue a ban if it passes, but they’ve spent decades pushing for new restrictions on a nearly annual basis and other states in the Midwest and South have banned abortion in recent weeks.
The Kansas measure would add language to the state constitution saying that it doesn’t grant a right to abortion, which would allow lawmakers to regulate it as they see fit.