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Judge: Legislature can intervene a little in abortion case

Idaho Statehouse
Posted at 4:43 PM, Aug 15, 2022
and last updated 2022-08-15 18:43:51-04

BOISE, Idaho — A federal judge says the Idaho Legislature can intervene in the U.S. Department of Justice's lawsuit targeting Idaho’s total abortion ban, but only to present evidence about emergency abortions performed in Medicaid-funded emergency rooms.

In the written ruling handed down Saturday, U.S. District Judge B. Lynn Winmill said the Legislature’s interests are already well-represented by the Idaho Attorney General’s office and Gov. Brad Little, so there’s no legitimate reason to add another party to the lawsuit.

The Justice Department sued Idaho last week over the state’s strict abortion ban, saying it would force doctors to violate the Emergency Medical Treatment and Labor Act, a federal law that requires anyone coming to a medical facility for emergency treatment to be stabilized and treated.

Allowing a state legislature the right to intervene in every federal case without first proving a distinct need would allow a state to “turn into a nine-headed Hydra whenever it chooses,” Winmill said.

The abortion ban was enacted in 2020 and set up as a “trigger law,” set to take effect on Aug. 25 now that the U.S. Supreme Court has overturned its landmark abortion rights ruling nearly a half-century after Roe v. Wade.

The law criminalizes all abortions, and anyone who performs, attempts or assists with abortions can face two to five years in prison in addition to losing their health care license. However, physicians who perform abortions to save a patient’s life, or in cases of rape or incest, can use that information as a legal defense during the criminal trial.

The Justice Department has asked the judge to stop the ban from going into effect while the lawsuit proceeds.

In its request to intervene, the Legislature claimed the Idaho Attorney General's Office wouldn't robustly defend the law. But Winmill rejected those arguments, noting that Idaho Attorney General Lawrence Wasden was among 20 state attorneys general who filed “friend of the court” briefs to the U.S. Supreme Court arguing that Roe v. Wade should be overturned. The governor did as well, the judge pointed out.

“Governor Little has consistently offered his full-throated support for Roe's overruling and for Idaho's Total Abortion Ban," the judge said.

The state legislature can present witnesses and evidence in opposition to the Justice Department's request to put the abortion ban on hold, but not in the rest of the case unless it becomes clear down the road that such intervention is necessary, Winmill said.

“Not a speck of evidence exists that the state and legislature's interests diverge in any real and practical sense," Winmill said.

The state has been defending its abortion laws on multiple legal fronts. A regional Planned Parenthood affiliate and an Idaho physician have sued the state over its three main abortion laws, including the ban that is the subject of the Justice Department lawsuit.

Another law allows potential relatives of an embryo or fetus to sue abortion providers for at least $20,000 within four years of an abortion. Rapists cannot sue under the law, but a rapists' family members can sue.

The third is a ban criminalizing abortions done after six weeks of gestation except in cases where the procedure was needed to save a pregnant person's life or done because of rape or incest, as long as the sexual assault has been reported to law enforcement. That law takes effect Aug. 19.

The Idaho Supreme Court last week ruled that the three laws could go into effect while the Planned Parenthood cases move forward.