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Idaho’s near-total ban on abortion goes into effect today

by | Aug 25, 2022

By Dave Andrusko

District Judge B. Lynn Winmill “ruled yesterday that Idaho’s abortion law, which goes into effect today, is preempted by the federal Emergency Medical Treatment and Labor Act (EMTALA) to the limited extent that the law’s life-of-the-mother provision is narrower than EMTALA’s definition of ‘emergency medical condition,’” according to Ed Whelan of National Review Online.

EMTALA is a federal law, enacted in 1986, that requires stabilizing treatment for any conditions that would jeopardize “the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child).”

The Department of Justice wanted Winmill “to block portions of the state’s abortion law” that the agency says conflict with the EMTALA, “which requires hospitals receiving federal Medicaid funding to provide emergency care to patients.”

Judge Winmill issued a preliminary injunction, ruling that the state law, which bans almost abortions, “does not provide adequate protection for physicians who perform abortions during a medical emergency, and therefore runs afoul of federal law guaranteeing patients the right to treatment when their health or life is at risk,” POLITICO’s Alice Miranda Ollstein wrote

Quoting from the opinion

“The Court does not find the State’s argument persuasive because it has failed to properly account for the staggeringly broad scope of its law, which has been accurately characterized by this Court and the Idaho Supreme Court as a ‘Total Abortion Ban.’”

Wednesday’s ruling “still allows Idaho to ban nearly all abortions, except in cases of rape, incest or threats to the mother’s life,” Ollisten wrote.” It only prevents prosecutors from charging doctors with felonies if they perform an abortion for a patient in a medical emergency and are unable to prove that the operation was necessary to save the patient’s life.”

The decision comes a day after U.S. District Judge James Wesley Hendrix came to an opposite conclusion. Hendrix agreed with Texas Attorney General Ken Paxton and issued a preliminary injunction prohibiting the Department of Health and Human Services from enforcing the July 11 Emergency Medical Treatment and Labor Act (EMTALA) Guidance and Letter in Texas.

Judge Hendrix wrote

Does a 1986 federal law ensuring emergency medical care for the poor and uninsured, known as EMTALA, require doctors to provide abortions when doing so would violate state law? Texas law already overlaps with EMTALA to a significant degree allowing abortions in life-threatening conditions’ and for the removal of an ectopic or miscarried pregnancy. But in Dobbs’s wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law.

That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment. As a result, the Court will preliminarily enjoin the Guidance’s enforcement against the plaintiffs.

In a statement, AG Paxton said

This Biden Administration’s Abortion Mandate has the effect of requiring doctors and hospitals to choose between performing abortions in violation of State law or caring for women as they always have while incurring fines and the loss of federal funding.

Texas law has long permitted doctors to perform abortions when the life of the mother is at risk. That is still the law. EMTALA does not empower the federal government to change that. EMTALA requires hospitals to treat patients the same regardless of their ability to pay; it does not authorize the federal government to commandeer the practice of medicine.

“While the Biden Administration continues to make up rules that are unconstitutional, I will keep holding them accountable. I will not allow the Biden Administration to threaten doctors and hospitals with this unlawful mandate and put millions of Texans’ access to healthcare on the line.”

Judge Winmill made a point of stressing that “the case would not serve as a broad debate about whether abortion should be permitted in the country,” The Washington Post’s Perry Stein reported. “Dobbs is the law of the land here,” Winmill said.

Categories: State Legislation
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