IDAHO CAPITAL SUN

BY: KELCIE MOSELEY-MORRIS – AUGUST 22, 2022 

District Judge B. Lynn Winmill will issue a written decision by Wednesday to either grant or deny a pause in the implementation of Idaho’s law banning nearly all abortions before the law is scheduled to take effect on Thursday.

Attorneys for the U.S. Department of Justice, the Idaho Attorney General’s office and the Idaho Legislature met Monday morning in Boise for the first time since the Department of Justice filed a lawsuit against the state of Idaho on the grounds that the abortion ban violates the federal Emergency Medical Treatment and Labor Act. That law requires hospitals that receive payments for the federal Medicare program to provide medical care to stabilize all patients who come to the hospital with a medical emergency. Violating the federal law can result in a hospital losing its ability to receive Medicare payments — one of the main sources of revenue for hospitals.

Winmill began the hearing by saying the case is not about the U.S. Supreme Court’s decision to overturn Roe v. Wade at the end of June, and said he had several concerns about situations highlighted by physicians who offered signed statements to the court saying the law would inhibit medical treatment. He said he thought the federal law and Idaho’s law seemed to be in “absolute conflict” with each other.

Idaho’s trigger law prohibits abortion in Idaho in nearly all cases, with potential defenses for rape, incest or to save a patient’s life. If a medical provider violates the statute, they can be convicted of a felony with a sentence of two to five years in prison. Anyone who performs or assists in abortion can also have their license suspended for a minimum of six months or permanently. The Department of Justice’s complaint says Idaho’s trigger law puts health care providers in an untenable position of risking criminal prosecution under the state law or subjecting themselves to enforcement actions under federal law.

Idaho Deputy Attorney General Brian Church and Monte Stewart, an attorney representing the Idaho Legislature, argued that physicians and nurses would be protected under Idaho’s law if they performed an abortion in their “good faith medical judgment” to prevent a patient’s death.

When Winmill asked what a physician should do in the case of a medical emergency where there is a high likelihood of stroke or other debilitating injuries, Church said as the law is written, if death was not imminent then the doctor would still be subject to prosecution.

Stewart said his answer to Winmill’s hypothetical situation was that the doctor should go ahead with their best medical judgment because “in the real world, there will not be a prosecution.”

“Idaho is capable of many things, but it’s not capable of producing a prosecuting attorney stupid enough to prosecute an ectopic pregnancy,” Stewart said. “This legislation is designed to balance this state’s determination of the moral value of the preborn child and the often weighty, and even heart-wrenching interests of the mother on the other hand.”

Winmill said the situations would not be limited just to ectopic pregnancies and pointed to statements submitted to the court by Idaho physicians that said permanent, debilitating injuries could result from many different scenarios, including placental abruption and when a patient’s water breaks early in pregnancy.

Brian Netter, deputy assistant attorney general for the U.S. Department of Justice, said the federal law as written protects the health of a pregnant patient, not just matters of life and death, and the law includes a preemption clause that allows federal law to supersede state law when the two are in conflict.

Winmill said he thought the fact that current prosecutors didn’t intend to enforce the law in certain medical scenarios wouldn’t be much comfort to a doctor potentially facing jail time for violating the law.

“Simply put, doctors in emergency rooms and labor and delivery rooms around this state are going to be forced to navigate their way through this statute,” Winmill said. “… The Legislature would not have adopted the law unless they intended for it to be enforced.”

The Department of Justice is seeking a permanent injunction against Idaho’s law as well, which would be decided at a later date.