Idaho abortion ban begins Thursday. District judge to rule Wednesday on federal challenge

A federal judge on Monday said Idaho’s abortion “trigger law” conflicts with a federal statute mandating that treatment — including abortion — be provided to emergency room patients.

The Justice Department this month petitioned Idaho’s district court to enjoin the state’s near-total ban on abortion, saying it conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). The federal statute requires that hospitals receiving Medicare funding “provide necessary stabilizing treatment” to patients experiencing a medical emergency.

“Simply put, doctors in emergency rooms, labor and delivery rooms around the state are going to be forced to navigate their way through this conflict between the abortion statute and EMTALA,” U.S. District Judge B. Lynn Winmill said during oral arguments at the federal courthouse Monday in Boise.

The hearing featured arguments from the Justice Department and from separate attorneys representing Idaho’s executive branch and Legislature.

The state law — one of three passed by Idaho Republicans to strip away almost all abortion rights — makes it a felony for physicians to provide the medical procedure, unless the pregnancy puts the pregnant person’s life at risk or was a result of incest or rape. The latter exceptions require that a police report is filed and shown to the physician.

The 2020 trigger law was put into effect by the U.S. Supreme Court’s reversal of decades-long federal abortion protections this summer.

Under the federal emergency treatment law, “emergency medical conditions” include not just life-threatening conditions, but also conditions that seriously jeopardize a patient’s health. The Justice Department is asking that the state’s law be declared invalid under the U.S. Constitution’s supremacy clause, which says federal law takes precedence over state law. U.S. attorneys also asked the court to permanently enjoin the Idaho law to the extent it conflicts with the federal treatment act.

Winmill said he expects to issue a ruling on the federal challenge by Wednesday, which is the day before the Idaho law is scheduled to take effect.

Meanwhile, Idaho’s so-called fetal-heartbeat abortion ban is already in effect. The 2021 law, which bans abortions when electrical pulses from cells beginning to form a heart are detected, took effect Friday — 30 days after a federal court upheld a similar law in Georgia. Doctors say this typically happens around six weeks of pregnancy and before many people even know they’re pregnant.

How would abortion ban affect physician decisions?

On Monday, Winmill questioned state attorneys about the practical effects of the trigger law.

An affirmative defense clause within the law requires that physicians, if they’re charged with conducting an illegal abortion, prove by a preponderance of evidence “that the abortion was necessary to prevent the death of the pregnant woman.”

That’s “unworkable in an emergency medicine setting,” wrote a group of leading medical and public health societies in a letter filed with the federal court. The Idaho law would prohibit lifesaving treatment for a pregnant person even when a fetus otherwise would not survive, the letter read.

“Well-established clinical guidelines for the treatment of pregnant patients in emergency conditions require treatment that the Idaho law would prohibit as abortion,” the letter stated. “Withholding this care is directly contrary to EMTALA’s mandate and to bedrock principles of medical ethics.”

Winmill asked Idaho Deputy Attorney General Brian Church what legal advice he would give a doctor grappling with whether to perform an abortion if there was a 50% or 5% chance the pregnant patient would die without the procedure.

Church said in his response to the hypothetical question that the law does not include “express probability or risk.”

“It simply applies where the abortion is necessary to sustain the life of the pregnant mother,” Church said Monday. “If the physician can testify and show that it was within her good faith, medical judgment … that the abortion was necessary to save the life of the pregnant woman, then that falls within the affirmative defense of Idaho code.”

An attorney representing the Idaho Legislature said the discretion of local prosecutors would be key to applying the law. A county attorney, for example, would not prosecute a physician for performing an abortion during an ectopic pregnancy, when a nonviable fetus grows outside the uterus, said Monte Stewart, a Nevada attorney hired by the Legislature.

“Idaho is capable of many things, but it is not capable of producing, now or in the future, prosecuting attorneys stupid enough to prosecute an ectopic pregnancy,” Stewart said.

The Justice Department’s attorney argued that the court should take Stewart’s assumption that prosecutors would not charge physicians in certain cases as “an enormous concession.”

“If the Legislature, and potentially the state, are taking the position that the text of the statute isn’t real, then that means the text of the statute isn’t lawful,” U.S. Deputy Assistant Attorney General Brian Netter said.

The court should block the “impermissible operation of a law which will cause drastic effects and dramatic consequences,” he added.

Before closing Monday’s hearing, Winmill signaled that he disagreed with the Legislature’s prosecutorial discretion argument. Judges are trained to evaluate statutory language, not predict “real-world events,” Winmill said.

“I have a very hard time seeing how we can compare abortion statute as we think it may be applied to what EMTALA requires when we certainly can’t rule out the possibility that it will indeed be enforced,” he said. “Indeed, the Legislature would not have adopted the law unless they intended that it would be enforced, according to the exact terms that they set forth.”