The U.S. Department of Justice filed a lawsuit against Idaho on Tuesday in an effort to stop the state’s trigger law, which will outlaw abortions starting on August 25 – with a few exceptions.
Attorney General Merrick Garland revealed the lawsuit at a press conference on August 2, saying that the DOJ is suing the state over a purported incompatibility with a federal statute requiring hospitals to offer stabilising care to anyone experiencing a medical emergency, regardless of their ability to pay.
Since the U.S. Supreme Court reversed Roe v. Wade in June and handed control of abortion policy back to the states, the lawsuit is the first attempt by the federal government to legally overturn a state abortion ban. The DOJ is attempting to prevent the implementation of the statute in Idaho.
Garland claimed that despite the law’s specific exception for situations in which the mother’s life is in danger, it will still be illegal for doctors to conduct abortions in Idaho. In accordance with Idaho legislation, an abortion may be performed if it was deemed necessary to avert the death of the pregnant woman in the doctor’s opinion.
Under the 1986 Emergency Medical Treatment and Labor Act (EMTALA), every hospital that receives Medicaid funds must provide “stabilizing treatment’” to patients with an “emergency medical condition.” According to the DOJ, the law defines necessary stabilizing treatment to include “all treatment needed to ensure that a patient will not have her health placed in serious jeopardy, have her bodily functions seriously impaired, or suffer serious dysfunction of any bodily organ or part.”
“In some circumstances, the medical treatment necessary to stabilize the patient’s condition is an abortion,” Garland said.
“When a hospital determines that an abortion is the medical treatment necessary to stabilize a patient’s emergency medical condition, it is required by federal law to provide that treatment.”
Other than the life of the mother, the Idaho law’s only exception is for instances of rape or incest that has been reported to police, and a copy of the report has been provided to the physician.
Garland argued that the Idaho law lacks an exception for a situation where an abortion is necessary to prevent “serious jeopardy to the mother’s health.” He said the DOJ chose Idaho’s law to target because it seemed “on its face” to contradict EMTALA.
There are exceptions to the “trigger laws” prohibiting abortion in every state of the United States in cases where the procedure may be necessary to preserve the mother’s life. Other jurisdictions, like Texas, with state-level abortion restrictions have exceptions for situations in which abortion may be required to avoid “serious risk of substantial impairment of a major bodily function.”
The removal of a miscarried child or the treatment of an ectopic pregnancy are also explicitly excluded in some states, even though these procedures aren’t typically seen as abortions.
The Charlotte Lozier Institute recently conducted an analysis of state pro-life legislation and found that while EMTALA mandates the evaluation and stabilisation of pregnant patients who present with suspected emergencies, it also treats both the mother and the foetus as patients in need of care, and that “none of the state laws prohibit this evaluation or the provision of life-saving care.”
Despite this, the Biden administration has made EMTALA the focal point of its approach to state laws that support life. Health and Human Services (HHS) Secretary Xavier Becerra gave the healthcare industry instructions on July 11 to conduct abortions in emergencies under EMTALA, regardless of state law.
The same directive from Becerra’s letter was also included in a memo released on July 11 by the HHS-affiliated Centers for Medicare and Medicaid Services (CMS).
The co-chair of the Catholic Medical Association’s ethics committee responded by telling CNA that every pregnancy in Catholic healthcare involves treating two patients.
“Treating a pathology of the mother does not require a direct attack on the unborn child,” Dr. Marie Hilliard told CNA in July.
On July 14, Texas filed a complaint against the HHS, CMS, and their leadership for their instruction regarding EMTALA. The state condemned the “Abortion Mandate” as an “unconstitutional exercise of authority” that “must be held unlawful and set aside.”
Texas accused the Biden administration of attempting to “use federal law to transform every emergency room in the country into a walk-in abortion clinic.”
“No federal statute confers a right to abortion,” the complaint says. “EMTALA is no different. It does not guarantee access to abortion. On the contrary, EMTALA contemplates that an emergency medical condition is one that threatens the life of the unborn child. It is obvious that abortion does not preserve the life or health of an unborn child.”