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US Department of Justice sues Idaho over abortion ban

The DOJ said the restrictive abortion law is in conflict with the Emergency Medical Treatment and Labor Act.

WASHINGTON, D.C., USA — The U.S Department of Justice is suing Idaho over its restrictive abortion ban set to take effect on Aug. 25, where they say that it directly conflicts with the Emergency Medical Treatment and Labor Act.

This was the Biden administration's first public legal action since the overturn of Roe v. Wade.

The DOJ also said they warned the State of Idaho that their near-total abortion ban was contrary to federal law, but did not receive a substantive response.

In the complaint filed Tuesday in the Ninth Circuit, the department stated that the only exception health-wise to providing an abortion under Idaho Code § 18-622 is if the abortion prevents the pregnant person's death -- and beyond preventing the death, the law does not provide a defense for someone's health being at stake. 

Under Idaho's abortion law, it would be a criminal offense for physicians to provide an abortion in any other circumstance.

United States Attorney General Merrick Garland held a press conference on Tuesday in which he detailed the lawsuit.

"On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom," Garland said.

Due to the "preventing death exception," the DOJ argues this violates the Emergency Medical Treatment and Labor Act (EMTALA). Under this act, hospitals are required to provide medical treatment that is necessary to stabilize the patient before discharge or transfer.

These factors in EMTALA don't just include a risk of death, but also include factors that place a person's health in serious jeopardy, risk serious impairment to bodily functions, or serious dysfunctions of any bodily organ or part.

Under EMTALA, if a hospital that participates in Medicare determines a patient has an emergency medical condition, the hospital must provide more examination and treatment necessary to stabilize the condition, or provide transfer to another facility that can do so.

The DOJ complaint states there are are 43 hospitals that voluntarily participate in Medicare in Idaho, and 39 of those hospitals have emergency departments that are required to comply with EMTALA.

The complaint lists some circumstances that may not be at risk of death but other health complications: ectopic pregnancies, severe preeclampsia, or any complication that threatens septic infections and hemorrhaging. The DOJ argues that some doctors may decide an abortion is necessary in these circumstances. 

RELATED: More Idaho abortion details: What is next?

"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," the complaint says.

Providing an abortion under the newly triggered Idaho law is a felony, punishable by up to two to five years in prison.

In multiple lawsuits Planned Parenthood has filed against the state regarding this law, Planned Parenthood has stated the circumstances are too narrow and vague for a physician to determine what constitutes an abortion and what does not. The DOJ complaint mostly concurs this notion, where they say the burden of proof is then put on the physician rather than the state.

Some providers could also withhold care out of fear of being criminally prosecuted, the complaint says. 

RELATED: Abortion in Idaho: 'Trigger ban' set to take effect August 25

"Idaho’s abortion law will therefore prevent doctors from performing abortions even when a doctor determines that abortion is the medically necessary treatment to prevent severe risk to the patient’s health and even in cases where denial of care will likely result in death for the pregnant patient," it states. 

The complaint says that due to this, Idaho's abortion law is therefor invalid under the United States Supremacy Clause as it directly conflicts with federal law.

The U.S DOJ is requesting for a judgement stating that Idaho Code § 18-622 violates the Supremacy Clause and is declared invalid, a declaratory judgement establishing that Idaho may not seek prosecution against those providing abortions, a permanent injunction against the state of Idaho prohibiting enforcement of this law and any other relief that the court deems proper.

Idaho Democratic Party Chair Lauren Necochea said in a statement in support of the lawsuit that the trigger law gives healthcare providers an "impossible choice" to either withhold medical care or be sent to prison.

"The extreme abortion ban, passed by the GOP-controlled legislature and signed by Gov. Little, endangers the lives of pregnant Idahoans and undermines the duty hospitals have to treat and stabilize sick patients," Necochea said.

On the other hand, Idaho Republican leaders have released statements voicing their displeasure over the lawsuit.

Idaho Gov. Brad Little said in a statement Tuesday that President Joe Biden is overreaching while continuing to ignore issues like "crushing inflation" and "the open border with Mexico."

“Here in Idaho, we are proud that we have led the country in protecting preborn lives," Little said. "I will continue to work with Attorney General Lawrence Wasden to vigorously uphold state sovereignty and defend Idaho’s laws in the face of federal meddling."

Idaho Attorney General Lawrence Wasden also released a statement, where he said that the DOJ had six weeks to voice their concerns to the state, but didn't. The DOJ said they sent a letter to the state but did not receive a response.

KTVB obtained the letter the DOJ sent to the state dated July 29.

It outlines their concerns with the abortion ban and states that the U.S has a "paramount interest" in ensuring that individuals in need of reproductive care are able to access those services.

"Pursuant to §§ 1-10.100 and 4-6.240 of the Justice Manual, I hereby provide notice that the Department of Justice intends to initiate litigation against the State of Idaho and to seek declaratory and injunctive relief preventing your law from interfering with the operation of federal law. Should you wish to identify facts or issues relevant to whether the United States should file an action, please do so no later than August 1, 2022," the letter said.

Scott Graf, a spokesman for the Attorney General's office, said that they are of the opinion that "if the DOJ was genuinely interested in engaging with the State of Idaho on this issue, they would’ve reached out well in advance of last Friday afternoon," since the Dobbs decision was handed down on June 24, a month prior.

KTVB asked Graf if lawsuits take a month or more to compile and file, given the timeline from June 24 to now.

Graf agreed, but said that this letter could have been sent out weeks ago without giving the state only a day and to respond. Therefor, due to the constricted timeline to respond, the state did not file one.

Wasden said later on in his statement that the DOJ is not applying EMTALA correctly.

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

Idaho GOP Chairwoman Dorothy Moon posted, "The Biden Administration believes that emergency rooms should become abortion clinics. The people of Idaho disagree."

The lawsuit will stay within the Ninth Circuit for a ruling, which could be appealed to the U.S Supreme Court.

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