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<em>Authored by: Amy Fouts, Greg Tanner, Claire Bass</em>

On Aug. 24, the United States District Court for the District of Idaho issued a preliminary injunction blocking the enforcement of Idaho’s new abortion law. The law was set to take effect on Aug. 25, 2022.

As previously reported, the U.S. Department of Justice (DOJ) filed suit on Aug. 2 against the state of Idaho, seeking to block the recently passed state abortion law. The DOJ alleged the Idaho law violates the federal Emergency Medical Treatment and Labor Act of 1986 (EMTALA) because it does not provide any exceptions for stabilizing treatment in emergency medical situations. EMTALA requires emergency room physicians at hospitals that participate in the federally funded Medicare program to offer stabilizing treatments to patients who are experiencing emergency medical conditions.

In granting the injunction, the court held that when stabilizing treatment is an abortion, it is impossible to comply with both the state abortion ban and EMTALA. If a physician provides an abortion, they face indictment, arrest, pretrial detention, loss of medical license, a trial on felony charges and at least two years in prison, with only the “cold comfort” of a “narrow affirmative defense” to possibly avoid conviction. Yet if the physician does not perform the abortion, the pregnant patient faces risks such as severe sepsis, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury or even death. The court found this to implicate the supremacy clause of the U.S. Constitution. Thus, on the question at issue of whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation, the court ruled that it does.

The Idaho injunction was issued just one day after a federal judge in the Northern District of Texas issued an injunction blocking the Department of Health and Human Services (HHS) from enforcing recently issued guidance on EMTALA. The federal court in Texas ruled that because EMTALA is silent on the topic of abortion specifically, guidance alone cannot answer how physicians should weigh risks to a mother and unborn baby. Accordingly, this court held that HHS’ guidance does not preempt Texas’ state law, exceeds the authority of EMTALA, and was improperly issued without notice and comment. Notably, the ruling in Texas was expressly limited to applying the injunction only in Texas.

The different outcomes on a similar issue in different jurisdictions will likely lead to further litigation and eventual review by federal appellate courts. BakerHostetler will continue to monitor this and other similar developments.

Federal Judge Blocks Idaho from Enforcing Abortion Ban in Emergencies

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