Judge Signals He’ll Likely Side With Biden Administration On Idaho Abortion Ban

Topline

A federal judge suggested Monday he was likely to side with the Biden Administration as it argues Idaho’s near-total abortion ban violates federal law, and will soon issue a ruling on whether to limit or block the law before it takes effect Thursday—the first time a court will rule on whether the White House can successfully challenge state abortion bans.

U.S. Attorney Merrick Garland speaks during a news conference at the U.S. Department of Justice … [+] August 2 in Washington, DC.

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Key Facts

U.S. District Judge B. Lynn Winmill heard arguments Monday over whether to issue a preliminary injunction that would block Idaho’s abortion ban from going into effect, at least for abortions performed during medical emergencies.

Idaho’s law only allows abortions when the life of the pregnant person is at risk—and abortion providers will face criminal prosecution unless they can prove in court it was medically necessary—a policy the Biden Administration argues conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide medical care when the pregnant patient’s health is at risk but the situation isn’t life-threatening.

Winmill suggested during the hearing he believed the state law conflicts with the federal statute, asking Idaho’s attorney “how do we get around the fact” that federal law requires abortions in the case of non-life-threatening emergencies, and raised a hypothetical scenario in which a doctor is weighing whether to perform an abortion in a case where there’s a 50% chance the patient could die.

The judge pushed back on an attorney for the state legislature who argued no prosecutors would be “stupid” enough to actually sue doctors who perform abortions in medical emergencies, saying it’s “not much comfort to a doctor that there is a sitting prosecutor who they think will not enforce [the abortion ban] but no one knows for sure.”

Doctors and other medical professionals “are going to be forced to navigate their way around this conflict,” Winmill said, noting he “cannot rule out the possibility” that doctors will be punished for providing abortions in non-life-threatening circumstances under the law even if attorneys claim they won’t.

What To Watch For

Winmill will now decide whether to issue a preliminary injunction that blocks the Idaho law, at least as it applies to emergency medical care, while the case moves forward. A written order will come by Wednesday, the judge said, before the law is scheduled to take effect on Thursday.

What We Don’t Know

Whether the Biden Administration will bring more lawsuits against states that have sought to ban abortion. Reuters reports the Idaho lawsuit is part of a broader legal strategy the White House is planning to challenge state abortion bans, at least in a limited capacity. In addition to bringing lawsuits alleging violations of EMTALA, Reuters reports the administration is also considering legal action against state bans on medication abortion, arguing that states can’t ban abortion pills that have been approved by the Food and Drug Administration.

Tangent

Coalitions of leading medical groups and Democratic-led states have filed briefs siding with the Biden Administration, urging the court to block the Idaho law and emphasizing its potential for harm. “By criminalizing necessary, medically indicated care in emergency situations, the Idaho Law will have devastating consequences for patients,” medical groups including the American College of Emergency Physicians, American College of Obstetricians and Gynecologists and American Medical Association argued.

Key Background

Idaho’s abortion ban is one of a number of abortion “trigger laws” that have taken effect or were set to take effect in the weeks following the Supreme Court overturning Roe v. Wade. The Idaho Supreme Court has ruled that the law could take effect while a separate legal challenge plays out in state court, and Idaho already bans abortions after approximately six weeks of pregnancy, except in cases of rape, incest and more broadly defined “medical emergencies.” The Biden Administration’s lawsuit came after the White House issued guidance to healthcare facilities advising them to perform abortions under EMTALA even when it conflicted with state abortion bans, as the Supreme Court’s decision has led to widespread reports of people being denied abortions and healthcare due to the threat of criminal prosecution even when it’s medically necessary. The Idaho lawsuit marks the first actual legal action the White House has taken against any state abortion bans, but a separate federal lawsuit is playing out in Texas, where state Attorney General Ken Paxton has sued the Biden Administration over its EMTALA abortion guidance.