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Judge to rule this week in DOJ lawsuit against Idaho's total abortion ban

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Posted at 2:37 PM, Aug 22, 2022
and last updated 2022-08-22 16:37:35-04

BOISE, Idaho — The United States Department of Justice argued in federal court Monday that Idaho's trigger law, also referred to as the total abortion ban, violates federal law.

The DOJ's argument is that the state's total ban conflicts with the Emergency Medical Treatment and Labor act also known as EMTALA.

EMTALA was adopted by the U.S. Congress in 1986 as a way to ensure that anyone facing a medical emergency is treated regardless of ability to pay or insurance status.

The act defines an emergency medical condition as "a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual's health (or the health of an unborn child) in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs."

During Monday's hearing, U.S. Deputy Assistant Attorney General Brian Netter said the fetal heartbeat law that bans abortions after six weeks of pregnancy would not be enforceable after Thursday when the total ban is set to take effect even if the court puts a hold on the total abortion ban.

Idaho Deputy Attorney General Brian Church argued the United States Justice Department is trying to completely get the total abortion ban overturned and deemed unconstitutional.

Related: Understanding the Constitutional law behind the Department of Justice's lawsuit against Idaho

Judge Winmill disagreed and said, "I won't enjoin anything more than what the United States has asked for."

The US Department of Justice is asking for an injunction in cases where EMTALA would allow abortions and Doctors would not face criminal charges.

The Justice Department says that EMTALA conflicts with sections 2 and 3 of the total abortion ban.

(2) Every person who performs or attempts to perform an abortion as defined in this chapter commits the crime of criminal abortion. Criminal abortion shall be a felony punishable by a sentence of imprisonment of no less than two (2) years and no more than (5) years in prison. The professional license of any health care professional who performs or attempts to perform an abortion or who assists in performing or attempting to perform an abortion in violation of this subsection shall be suspended by the appropriate licensing board for a minimum of six (6) months upon a first offense and shall be permanently revoked upon a subsequent offense.

(3) It shall be an affirmative defense to prosecution under subsection (2) of this section and to any disciplinary action by an applicable licensing authority, which must be proven by a preponderance of the evidence, that:

(a)(i) The abortion was performed or attempted by a physician as defined in this chapter;

(ii) The physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman. No abortion shall be deemed necessary to prevent the death of the pregnant woman because the physician believes that the woman may or will take action to harm herself; and

(iii) The physician performed or attempted to perform the abortion in the manner that, in his good faith medical judgment and based on the facts known to the physician at the time, provided the best opportunity for the unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman. No such greater risk shall be deemed to exist because the physician believes that the woman may or will take action to harm herself; or

(b)(i) The abortion was performed or attempted by a physician as defined in this chapter;

(ii) If the woman is not a minor or subject to a guardianship, then, prior to the performance of the abortion, the woman has reported the act of rape or incest to a law enforcement agency and provided a copy of such report to the physician who is to perform the abortion;

(iii) If the woman is a minor or subject to a guardianship, then, prior to the performance of the abortion, the woman or her parent or guardian has reported the act of rape or incest to a law enforcement agency or child protective services and a copy of such report has been provided to the physician who is to perform the abortion; and

(iv) The physician who performed the abortion complied with the requirements of paragraph (a)(iii) of this subsection regarding the method of abortion.

United States District Judge B. Lynn Winmill will issue a written ruling on the matter by Wednesday.