Judge says Idaho's near-total abortion ban seems to conflict with federal law

Idaho's near-total abortion ban appears to have a serious conflict with a federal law governing emergency health care treatment, a federal judge said Monday.

The U.S. Department of Justice sued the Republican-led state of Idaho earlier this month, saying the abortion ban set to take effect on Thursday violates a federal law requiring Medicare-funded hospitals to provide "stabilizing treatment" to patients experiencing medical emergencies. Idaho's law criminalizes all abortions in "clinically diagnosable pregnancies," but allows physicians to defend themselves in court by arguing the procedure was necessary to avert the death of the mother.

U.S. District Senior Judge B. Lynn Winmill said the potential conflict is because Idaho's law doesn't appear to account for cases when a pregnant person might face serious medical consequences if the pregnancy is continued.

"That is more than just a hypothetical concern," Winmill told attorneys on both sides during oral arguments in Boise's federal courthouse. The judge said he would decide by the end of the day on Wednesday whether to temporarily block the strict abortion ban while the lawsuit proceeds.

States across the U.S. are watching the case closely and picking sides. So far, 36 states have signed on to friend-of-the-court briefs, with 20 states siding with the federal government and 16 defending Idaho's abortion ban. Several major medical organizations have also filed briefs siding with the federal government, saying the ban forces physicians to choose whether they will break state or federal law.

During Monday's arguments, Winmill questioned Idaho Deputy Attorney General Brian Church about whether ectopic pregnancies are included in the state's definition of pregnancy, as written in the abortion ban law.

Ectopic pregnancies are considered life-threatening and occur in about one in every 50 pregnancies, according to the American Academy of Family Physicians. They happen when a fertilized egg implants outside the uterus — usually in the fallopian tube — and begins to grow. Untreated ectopic pregnancies will rupture, causing life-threatening internal bleeding.

"I am bound by what the Legislature has wrote," Church told the judge. "It is our understanding that with respect to the ectopic pregnancy, that would be defined as pregnancy under the law."

That means doctors or nurses who treat an ectopic pregnancy — which always involves using medication or surgery to remove the embryo, hopefully before other organs are damaged — could face criminal charges if a prosecutor decided to file them.

But Monte Stewart, the attorney representing the Idaho Legislature, said that would never actually happen.

"Idaho is capable of a great many things, but it's not capable of producing a prosecuting attorney stupid enough to prosecute an ectopic pregnancy," Stewart said.

Brian Netter, the attorney for the U.S. Department of Justice, said that no one can know what an individual prosecutor will decide to do, much less predict which prosecutors will be elected in each of Idaho's 44 counties for years to come.

"The very nature of discretion is that different people are going to exercise it differently," Netter said.

Besides, Netter said, Idaho law includes provisions that allow individuals to bring criminal complaints before a magistrate judge, as well as for grand jury members to identify a commission of a crime and add it to the investigation. That means any citizen could potentially try to have physicians prosecuted for performing abortions, Netter told the judge.

The federal Emergency Medical Treatment and Labor Act (EMTALA) requires stabilizing treatment whenever someone faces an emergency that could lead to potentially serious or disabling health problems, not just death, Netter said.

But Stewart said Idaho's law was written by "real world, practical people" to handle real world problems.

"The Legislation was designed to balance the moral value of the preborn child on one hand and the often weighty interest of the mother on the other hand," Stewart said. "This is where the state of Idaho has drawn the line."

But Winmill noted that the language of the law is what matters for the courts.

"Simply put, doctors and emergency rooms and labor and delivery rooms around this state are going to be forced to navigate their way around this conflict between the state statute and EMTALA," Winmill said. "The text matters in terms of impacting the decisions of those doctors when they confront a life-or-death situation regarding a pregnancy that has gone horribly wrong."

If Winmill decides not to put the state law on hold while the lawsuit moves forward, it will take effect on Thursday. Still, most abortions in Idaho were effectively banned on Aug. 12, when the Idaho Supreme Court allowed a different law to go into effect allowing potential relatives of an embryo or fetus to sue abortion providers.

On Friday, yet another abortion ban went into effect, this one criminalizing abortions after about six weeks' gestation except for medical emergencies or in cases of rape or incest, as long as the pregnant person has reported the crime to law enforcement and provided a copy of the report to the physician. Idaho's public records law keeps law enforcement reports sealed for extended periods of time, often lasting weeks, months or longer.