Justice Department sues Idaho over abortion ban in first post-Roe litigation

WASHINGTON — The Justice Department filed a lawsuit Tuesday arguing that Idaho’s near-total abortion ban violates federal law — the Biden administration’s first litigation to protect abortion access since the The Supreme Court overturned the 1973 Roe v. Wade decision end of June.

Announcing the lawsuit at DOJ headquarters, Attorney General Merrick Garland told reporters that the Idaho ban violates a federal law that requires medical providers to offer emergency medical care.

Under the Emtala (Emergency Medical Treatment and Labor Act), every hospital in the United States that receives Medicare funds must provide “necessary stabilizing treatment to patients who arrive at the emergency room while facing a medical emergency. “, says the 17-page complaint. Under certain circumstances, the necessary medical treatment is an abortion.

“This may be the case, for example, when a woman experiences a miscarriage that threatens a septic infection or hemorrhage, or has severe preeclampsia,” Garland said.

Image: People protest the Supreme Court ruling in Boise, Idaho on July 20, 2022.
People protest the Supreme Court ruling in Boise, Idaho on July 20, 2022.Sarah A. Miller/Idaho Statesman via Getty Images File

Idaho’s law, set to take effect Aug. 25, ‘will make the performance of an abortion a crime in all but extremely narrow circumstances,’ the complaint said, including when doctors provide the care. emergency medical assistance required by federal law.

The suit seeks a declaration that the Idaho law violates the Supremacy Clause of the Constitution and is preempted and in conflict with federal law. He also seeks a judgment that Idaho cannot sue or attempt to revoke the professional license of any medical provider who performs an abortion permitted under federal law. The department also called for a preliminary and permanent injunction against the state of Idaho to restrain the enforcement of its abortion ban when it conflicts with federal law.

“In the days following the Dobbs decision, there were numerous reports of delays and denial of treatment for pregnant women in medical emergencies,” Garland said. “Today, the message from the Department of Justice is clear – it doesn’t matter what state a hospital operating under EMTALA operates in. If a patient presents to the emergency room with a medical emergency, endangering the life or health of the patient, the hospital must provide the necessary treatment to stabilize that patient. This includes abortion, and this is the necessary treatment.

Associate Attorney General Vanita Gupta, who leads the department reproductive rights working groupsaid during the Tuesday announcement that Idaho law places the onus on doctors to prove at trial, after arrest and indictment, that they are not criminally responsible.

“Doctors can only do this by proving that the abortion they performed was necessary for one of two reasons: to prevent the death of a pregnant woman, or in response to a case of rape or of incest that has been previously reported to the police or in the case of a minor to child protective services.Doctors who fail to carry out this charge risk two to five years in prison and dismissal. of their medical license,” Gupta said.

The lawsuit comes weeks after Garland said the department would advise federal agencies on their authorities for protect access to abortionengaging in litigation and initiating lawsuits on the side of private parties with amicus briefs and declarations of interest.

“The Department of Justice is going to use every tool we have to secure reproductive freedom,” he told reporters and added that he would file a motion to dismiss a lawsuit in Texas challenging Department of Health and Human Services guidelines requiring medical providers to offer abortions in emergency situations.

The federal law on which the guidelines are based “requires hospitals to provide stabilizing care to a patient who presents with a medical emergency that seriously threatens their life or health,” he said. “And where that stabilizing treatment is abortion, they must provide the abortion. They must do so notwithstanding any state law that is so narrow that it does not even protect a woman’s life or health. .”

On Friday, Garland, Gupta and other DOJ officials convened a meeting of private law firms, law professors, bar associations and public interest groups at the White House to discuss legal representation. patients, providers and third parties legally seeking or offering reproductive health services. Across the country.

The department “works tirelessly to protect access to reproductive services” in recognition of “the crisis this is,” Garland said.

“It will take all of us – government attorneys, private volunteer lawyers, bar associations, public interest organizations – doing all we can to protect access to reproductive health care and ensure strong legal representation for patients, providers and third parties in need,” he said.

Meanwhile, Kansas voters will decide tuesday one constitutional amendment that will determine the future of abortion rights in their state – the first time in the United States that voters will vote on abortion since the Supreme Court overturned Roe.

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