BOISE, Idaho (AP) — Sixteen more states are asking to comment on the US Justice Department’s lawsuit against Idaho over its strict abortion ban.
The Justice Department sued the Republican-led state of Idaho earlier this month, saying the abortion ban set to go into effect on August 25 violates a federal law that requires Medicaid-funded hospitals to provide “treatment stabilizer” to patients experiencing medical emergencies. In July, the administration of President Joe Biden told hospitals that the Emergency Medical Treatment and Labor Act, or EMTALA, requires them to provide abortion services if the pregnant person’s life is at risk.
In court documents filed Friday, Indiana, Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming characterized the federal government’s guidelines. as “EMTALA concession conditions” and said they do not have the power to preempt state law.
Using the Supremacy Clause to enforce conditions on federal grants is “fundamentally a failure,” the states said in court documents.
The states also maintain that Idaho’s abortion law does not directly conflict with federal law because hospitals may comply with both simply by refusing federal funding.
Idaho’s abortion ban makes performing an abortion a felony, but allows doctors to defend themselves in court by showing that the procedure was necessary to save a patient’s life.
State governments across the United States are watching the case closely. Earlier this week, 20 states and Washington, DC, filed a friend-of-the-court brief siding with the federal government and asserting that their own residents would be at risk if they had a medical emergency while pregnant and in Idaho. Neighboring states like Oregon and Washington also said they fear the “side effect” an abortion ban would create, as Idaho patients with ectopic pregnancies or other emergencies are forced to seek out-of-state care.
Coalitions of major medical associations, including the American College of Emergency Physicians, the American College of Obstetricians and Gynecologists and others, also filed briefs in the case, saying the Idaho law is too vague and difficult to medically interpret, and that would force health care providers to choose between violating state law and being charged with a crime, or violating federal law and facing fines and loss of federal funds.
Medical organizations also say the law puts pregnant people in serious danger by limiting or delaying the kind of care they can get in an emergency.
US District Judge B. Lynn Winmill is scheduled to hear arguments Monday morning on whether the law should temporarily go out of effect while the lawsuit moves through the courts.
Either way, most abortions are now illegal in Idaho. A law criminalizing performing or assisting with an abortion after about six weeks’ gestation officially went into effect on Friday. The law includes exceptions for abortions performed in medical emergencies or in cases of rape or incest, as long as the pregnant person provides the doctor with a copy of a police report, which typically takes weeks or months to obtain in Idaho.
The total abortion ban will replace the existing ban if it is allowed to go into effect on Thursday.
Still, abortions have been effectively banned in the state since Aug. 12, when the Idaho Supreme Court said another law could go into effect that allows potential relatives of an embryo or fetus to sue providers of abortion services. abortion for at least $20,000. Under that law, a rapist would be barred from suing, but members of the rapist’s family could sue.
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