DOJ Alleges Idaho Abortion Law Violates EMTALA

Alerts / August 3, 2022

On Aug. 2, the U.S. Department of Justice (DOJ) filed suit against the state of Idaho to block a state abortion law set to take effect on Aug. 25, claiming that it violates the federal Emergency Medical Treatment and Labor Act of 1986 (EMTALA).

Under EMTALA, a hospital that receives Medicare funds must provide treatment to patients who present to the hospital’s emergency department with an “emergency medical condition.” The DOJ explains that “emergency medical conditions” under EMTALA “include not just conditions that present risks to life but also those that place a patient’s ‘health’ in ‘serious jeopardy’ or risk ‘serious impairment to bodily functions’ or ‘serious dysfunction of any bodily organ or part.’”

The DOJ’s complaint targets Idaho Code § 18-622, which would criminalize abortions in the state. Under the proposed statute, any healthcare professional who performs, attempts to perform or assists in performing an abortion or attempted abortion will face imprisonment and professional license suspension or permanent license revocation. The statute does not contain any exceptions to the felony abortion provision but does include the following potential defenses a healthcare provider may use if charged: (1) the abortion is performed because the physician believes that it is necessary to prevent the pregnant woman’s death; (2) the abortion was performed to provide the best opportunity for the unborn child to survive; or (3) the pregnant woman is a minor and the physician is provided a copy of a police report that the pregnant woman reported the act of rape or incest to law enforcement.

In the complaint, the DOJ describes this law as a “near-absolute ban on abortion” that “would make it a criminal offense for doctors to comply with EMTALA’s requirement to provide stabilizing treatment” where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks. The DOJ’s complaint highlights that the statute’s use of “affirmative defenses” as opposed to “exceptions” means that no physician who performs an abortion will be protected from potential arrest or criminal prosecution even when they act within one of the three types of situations described as “defenses.” The DOJ argues that the incredible burden of having to affirmatively defend themselves will chill physicians from performing any abortions even when the life of the mother is at serious risk or when a minor is the victim of rape, and such chilling effect will lead to physicians failing to provide emergency care to pregnant women as required by EMTALA.

Accordingly, the DOJ is asking the federal district court to declare the Idaho law is invalid under the supremacy clause of the U.S. Constitution and is preempted by federal law to the extent it conflicts with EMTALA. If successful, the DOJ’s suit would prevent the state statute from taking effect.

BakerHostetler will continue to monitor this and similar developments. For more information, see our Post-Roe Resource Center.

Authorship Credit: Amy E. Fouts, Claire M. Bass and Gregory A. Tanner

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