Justice Dept. Sues to Block New Idaho Abortion Law

August 2, 2022 by Dan McCue
Justice Dept. Sues to Block New Idaho Abortion Law
Attorney General Merrick Garland speaks during an event to swear in the new director of the federal Bureau of Prisons Colette Peters at BOP headquarters in Washington, Tuesday, Aug. 2, 2022. (Evelyn Hockstein/Pool Photo via AP)

WASHINGTON — The Justice Department sued the state of Idaho on Tuesday to block its new and highly restrictive abortion law claiming it violates a federal law requiring a majority of hospitals to provide medical care to those who need it.

The lawsuit, filed in the federal court in Boise, Idaho, is the first the Justice Department has filed against a state’s new abortion restrictions since the Supreme Court ruled in June that women do not have a constitutional right to an abortion.

“On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom. That is what we are doing,” Attorney General Merrick Garland said during a briefing with reporters on Tuesday.

“We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law,” he added.


The Supreme Court’s ruling reversed the high court’s nearly 50-year-old decision in Roe v. Wade, which said the privacy guarantees in the Constitution extended to a woman’s right to terminate her pregnancy.

It also reversed the court’s decision in Planned Parenthood v. Casey, the 1992 case which largely upheld Roe.

In the wake of that decision, a number of states either enacted new laws or “triggered” laws already on their books to effectively ban all or nearly all abortions within their borders.

In the complaint filed in Idaho, the Justice Department claimed the state “passed a near-absolute ban on abortion.”

“Once the Idaho law takes effect on Aug. 25, 2022, Idaho Code § 18-622 will make it a felony to perform an abortion in all but extremely narrow circumstances,” the complaint says, adding, “The Idaho law would make it a criminal offense for doctors to comply with EMTALA’s requirement to provide stabilizing treatment, even where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks or even death.”

EMTALA, also known as the Emergency Medical Treatment and Labor Act , states that if a person with an “emergency medical condition” seeks treatment at an emergency department at a hospital that accepts Medicare funds, the hospital must provide medical treatment necessary to stabilize that condition before transferring or discharging the patient.

“In some circumstances, the medical treatment necessary to stabilize the patient’s condition is abortion,” Garland said during his 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,” he said. “When a hospital determines that an abortion is the medical treatment necessary to stabilize the patient’s emergency medical condition, it is required by federal law to provide that treatment.”

The Justice Department does concede the Idaho law provides an exception to prevent the death of a pregnant woman, but notes that the law includes no exception for cases in which the abortion is necessary to prevent “serious jeopardy to the woman’s health.”

Further, Garland said, the Idaho law “would subject doctors to arrest and criminal prosecution, even if they perform an abortion to save a woman’s life.”

Garland also went to some lengths to explain that the Justice Department’s lawsuit does not conflict with the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization.

“This is not in any way going around the Supreme Court,” he said. “The Supreme Court said each state can make its own decisions with respect to abortion, but so too can the federal government. Nothing the Supreme Court said that the statutes passed by Congress such as EMTALA are in any way invalid.”

The Justice Department is asking the federal court to declare Idaho’s law violates the Supremacy Clause of the U.S. Constitution, and is preempted by EMTALA. 

The action also seeks an injunction barring Idaho authorities from enforcing the law against health-care providers who give treatment required under the act.

In a written statement, Idaho Attorney General Lawrence Wasden said, “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. Since the Dobbs decision from the U.S. Supreme Court in June, the department has had nearly six weeks to discuss with Idaho its abortion laws and their reconciliation with EMTALA.

“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.”  42 U.S.C. 1395dd(f),” Wasden said.


“Instead of complying with the requirements of this provision and reconciling Idaho’s law with EMTALA, or even attempting to engage Idaho in a meaningful dialogue on the issue, the federal government has chosen to waste taxpayer dollars on an unnecessary lawsuit,” he added.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.

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