Attorney General Merrick Garland announced Tuesday that the Justice Department is suing Idaho over the state’s near-total abortion ban in order to protect the rights of patients to access emergency medical care. It marks the first lawsuit filed by the DOJ over abortion rights since the conservative-majority Supreme Court overturned the 1973 Roe v. Wade decision on June 24.
Garland was joined at Tuesday’s news conference by members of the DOJ’s newly created Reproductive Rights Task Force.
The Justice Department also announced the lawsuit in a statement on its website. Garland said:
“On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom. That is what we are doing, and that is what we will continue to do. We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law. And we will closely scrutinize state abortion laws to ensure that they comply with federal law.”
NBC News wrote:
In making the announcement at DOJ's headquarters, Attorney General Merrick Garland told reporters that Idaho’s ban violates a federal law that requires medical providers to offer emergency medical treatment.
Under the Emergency Medical Treatment and Labor Act (EMTALA), every hospital in the U.S. that receives Medicare funds must provide "necessary stabilizing treatment to patients who arrive at their emergency departments while experiencing a medical emergency," the 17-page complaint reads. In some circumstances, the necessary medical treatment is an abortion.
"This may be the case, for example, when a woman is undergoing a miscarriage that threatens septic infection or hemorrhage, or is suffering from severe preeclampsia," Garland said.
Idaho's law, which is set to take effect on Aug. 25, "will make it a felony to perform an abortion in all but extremely narrow circumstances," the complaint said, including when doctors provide emergency medical treatment required by federal law.
Idaho officials immediately announced that they would fight Garland’s lawsuit, The Washington Post reported.
Idaho Attorney general Lawrence G. Wasden (R) said he disagrees with Garland’s reading of the federal medical treatment requirement, arguing that the Idaho law is allowed under it.
The state’s governor, Brad Little (R), called the lawsuit an “overreach” and said he would “defend Idaho’s laws in the face of federal meddling.”
It’s possible that this could be the first in a series of lawsuits to be filed by the DOJ since some other states also have laws that do not make exceptions to their abortion bans for the life or health of the woman.
The DOJ’s lawsuit argues that the Idaho law violates a federal statute, and when that’s the case, federal law prevails, according to the Constitution.
Associate Attorney General Vanita Gupta, who chairs the DOJ’s Reproductive Rights Task Force faulted the Idaho law for putting the legal burden on doctors and nurses accused of performing abortions to prove that they did not violate the law.
“The law places medical professionals in an impossible situation,” Gupta said. “They must either withhold stabilizing treatment … or risk felony prosecution and license revocation. The law will chill providers’ willingness to perform abortions in emergency situations and will hurt patients by blocking access to medically necessary health care.”
The lawsuit seeks a judgment that Idaho may not initiate a prosecution or seek to revoke the professional license of any medical provider who performs an abortion authorized under federal law. It also asks for a preliminary and permanent injunction to prohibit Idaho from enforcing its abortion ban when it conflicts with federal law.
Already there have been cases reported in several states in which pregnant women said that doctors had been reluctant to provide appropriate medical treatment in fear of violating their state’s abortion laws. Here is a transcript of Garland’s remarks at the news conference:
Health and Human Services Secretary Xavier Becerra issued a statement declaring that his department would work with DOJ “to enforce federal law protecting access to health care, including abortions.”
“Federal law is clear: Patients have the right to stabilizing hospital emergency room care no matter where they live. Women should not have to be near death to get care,” Becerra said.
In early July, HHS issued a memo reiterating existing guidance around EMTALA, underlining the guidance’s preemptive federal authority over any state abortion restriction.
HHS can enforce EMTALA through a complaint process that can result in hospitals or individual doctors having to pay civil fines of up to about $120,000 per hospital or physician who violates any provision under EMTALA. Complaints can be filed by hospital staff, doctors, and patients with the Centers for Medicare and Medicaid Services.