Idaho AG’s office asks judge for time to file new brief in federal abortion case

This story was originally published on idahocapitalsun.com on Jan. 30, 2023.

Representatives from Idaho Attorney General Raúl Labrador’s office plan to file a new briefing in the U.S. Department of Justice lawsuit against the state over its abortion bans — now that a new AG has taken office and the Idaho Supreme Court has upheld the state laws.

Deputy Attorney General Steven L. Olsen asked the court not to issue a decision on the request to reconsider an injunction ruling until the state can file its new briefing. Olsen wrote that the Idaho Supreme Court’s opinion in Planned Parenthood lawsuits contained determinations of law that are of “significant import” to the case.

Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the Idaho Supreme Court, beginning with the civil enforcement bill — also known as the heartbeat bill — and suits against the total abortion ban and a six-week ban.

In their opinion, three concurring Idaho Supreme Court justices said Idaho’s history around abortion laws did not make it clear that the state’s founders intended to include abortion in its inalienable rights around privacy, and said if voters are unhappy with the new laws, they should take their opinions to the ballot box. Two justices dissented in the decision.

The U.S. Department of Justice filed its lawsuit in early August, arguing that Idaho’s near-total ban on abortion violated the federal Emergency Medical Treatment and Labor Act, which 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.

Idaho’s law prohibits abortion in nearly all cases, with potential legal 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.

District Judge B. Lynn Winmill granted the U.S. government’s request for an injunction in August that protects doctors who are handling emergency medical decisions from penalty under the abortion law. While the injunction is in place, all state officials are prohibited from pursuing criminal prosecution or suspending or revoking medical licenses if an abortion is necessary to avoid jeopardizing a pregnant person’s health.

“The clear and intended effect of Idaho’s criminal abortion law is to curb abortion as a form of medical care. This extends to emergency situations, obstructing EMTALA’s purpose,” Winmill wrote in the injunction order. “Idaho’s choice to impose severe and sweeping sanctions that decrease the overall availability of emergency abortion care flies in the face of Congress’s deliberate decision to do the opposite.”

Attorneys for the Idaho Legislature, which intervened as an additional party in the case, asked Winmill to reconsider his ruling in early September, and the judge has not yet responded.

“Because (the Idaho Supreme Court) decision was issued after briefing on the motion for reconsideration was complete, no party’s counsel has had the opportunity to weigh in regarding the decision — including the state’s recently sworn-in Attorney General. ... The state, through Attorney General Labrador, respectfully asks the court to grant it an opportunity to provide supplemental briefing addressing the major implications that the Planned Parenthood decision has on this case and the preliminary injunction,” Olsen wrote.

Idaho Legislature’s attorneys on reconsideration

The Idaho Legislature’s attorneys from Morris Bower & Haws joined in asking the court to wait to make a decision and said in court documents that the Idaho Supreme Court’s ruling changed the fundamental constitutional arguments against the laws. They called the laws “fully vindicated” and said the court should accept a new brief with fresh arguments.

The attorneys also made it clear they were unhappy with Winmill for not issuing a ruling on the request for reconsideration.

“Perhaps this court postponed action on the off chance that the Idaho Supreme Court would moot this civil action by invalidating (the abortion laws) as a matter of Idaho law. The opposite has now happened,” attorneys Daniel W. Bower and Monte Neil Stewart wrote.

“Further delay in deciding the Legislature’s motion serves no purpose except to unduly prolong this litigation and deny the Legislature a fair opportunity to carry its objections to the Ninth Circuit for appellate review.”

Attorneys for the U.S. Department of Justice did not object to the state’s request, and Winmill granted the motion last Tuesday. The court agreed not to issue any decisions on pending matters in the case until a new brief is filed on or before Feb. 21 and the government has time to respond.