The Biden administration has gotten its fair share of criticism for its….cautious approach to handling the chaos caused by the Supreme Court’s reversal of Roe v. Wade.
But on Tuesday, Biden’s Justice Department announced that they’re suing Idaho to block their near-total abortion ban, which is set to take effect later this month. The lawsuit against Idaho’s anti-abortion law is the first of its kind since the Supreme Court overturned Roe.
To understand why the Justice Department is suing Idaho, it’s worth taking a closer look at the law the DOJ is suing under, the Emergency Medical Treatment and Labor Act, and Idaho’s new abortion ban.
Let’s start with the abortion ban. In 2020, Idaho passed a “trigger law,” which would ban abortion once the Supreme Court overturned Roe. (Spoiler alert: two years later, the Supreme Court reversed the landmark opinion establishing the right to abortion.)
The ban made performing an abortion a felony punishable by at least two years and up to five years in prison.
Like most of these abortion bans, the law contains exceptions for rape and incest and for saving a pregnant person’s life. But, there are several catches.
For one, the rape and incest exception is only valid if the patient reports what happened to law enforcement, which might not be an option for every abuse victim seeking an abortion.
The second issue with the exceptions is that according to the DOJ, they don’t provide meaningful protection from prosecution. According to the Idaho law, anyone who performs an abortion can face prosecution, regardless of their reasoning.
The law provides what’s called an “affirmative defense” exception, which means that if a doctor provides an abortion to save a pregnant person’s life or because of rape or incest, they could still be prosecuted and the doctor would have to prove in court that the abortion fell within these exceptions.
As you might imagine, the affirmative defense section of the law, is what puts Idaho squarely in the DOJ’s crosshairs.
The Emergency Medical Treatment and Labor Act – a.k.a EMTALA, requires hospitals that take Medicare funding to provide “necessary stabilizing treatment to patients who arrive at their emergency department for an emergency medical condition.”
So if I show up in your E.R. that takes Medicare funding with a life-threatening pregnancy complication, you’re required to save me, even if saving me requires terminating the pregnancy.
But the lawsuit argues that Idaho’s abortion ban would put doctors in an impossible bind. Do they risk prosecution under the Idaho law and save their patient, or do they risk running afoul of the Federal regulations?
The DOJ lawsuit alleges that “Idaho’s criminal prohibition of all abortions, subject only to the statute’s two limited affirmative defenses, directly conflicts with EMTALA.”
In a statement on Tuesday, Associate Attorney General Vanita Gupta said that the lawsuit was just the “first public example” of the administration’s response to the changing abortion laws.
It’s unclear how the lawsuit will shake out, but it’s worth watching to see whether the Biden administration’s new approach to tackling the post-Roe reality will be successful.