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The U.S. Justice Department sued Idaho on Aug. 2, saying its strict new abortion law violates the federal law protecting the rights of women to have abortions when they are facing medical emergencies.
The lawsuit is the first action by the Biden administration to challenge a state trigger law since the U.S. Supreme Court overturned Roe v. Wade in late June. It occurred on the same day that voters in Kansas resoundingly rejected a ballot measure that would have given the state's Republican-controlled legislature the power to place restrictions on abortion or ban it outright.
The two developments appear to mark the beginning of a counterattack against restrictive new state abortion laws.
The Idaho trigger law, which goes into effect Aug. 25, subjects doctors to arrest and criminal prosecution for performing an abortion, even if the patient is experiencing a medical emergency. The law does allow abortions to save the life of the mother; it also allows abortions for rape and incest victims, though these patients have to produce a police report to the doctor.
The lawsuit seeks an injunction to prevent enforcement of the law in situations where an abortion is necessary to treat emergency medical conditions.
"Physicians facing a threat of criminal prosecution for performing an emergency abortion may be reluctant to perform the procedure — even when their medical judgment leads them to conclude that the procedure is necessary," DOJ wrote in the complaint. "The loss of that necessary treatment will result in irreversible damage to the health of a pregnant patient in some instances, and in others could lead to death."
In July, the U.S. Department of Health and Human Services issued guidance to ensure that abortions may still be performed in certain emergency situations at hospitals that take Medicare funding. Days later, Texas Attorney General Ken Paxton filed a lawsuit, saying it would "force abortions" in the state.
The central issue in both the DOJ and Texas lawsuits is similar: What is the scope of federal law to protect emergency-room doctors who make decisions about abortions in medical emergencies?
The Idaho law permits law enforcement to arrest and indict doctors who perform abortions regardless of the circumstances. It is up to doctors to defend themselves at trial by showing that one of the narrow exceptions to the ban applied.
The Justice Department says that the Idaho law conflicts with the federal Emergency Medical Treatment and Labor Act, the law requiring emergency rooms to treat patients regardless of their ability to pay. DOJ says that federal law is supreme to state law in those situations under the U.S. Constitution.
Idaho Gov. Brad Little, however, argues that the state is free to make its own decisions. He responded to the lawsuit with a statement pledging to "vigorously uphold state sovereignty and defend Idaho's laws in the face of federal meddling."
Will DOJ file more lawsuits? It remains to be seen, but the legal issue in the Idaho case —whether federal law or state law holds sway in determining when a doctor decides that abortion is warranted in a medical emergency — also exists in other states with restrictive new abortion laws.
As it stands, the ER doctors in these states, are stuck in difficult situations. They need an answer. If federal law prevails, they will have a clear understanding. If not, they may seek to avoid criminal charges by not providing the treatment they once provided.
The courts will decide.
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Idaho's tough new anti-abortion law criminalizes doctors who perform abortions even if they think it's necessary in a medical emergency. The U.S. Justice Department has filed a lawsuit saying that the restriction violates federal law.
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