Idaho AG: No need to keep protecting doctors, court ruling cleared up abortion laws

This story was originally published on idahocapitalsun.com on Feb. 13, 2023.

Deputies from Idaho Attorney General Raúl Labrador’s office filed a new brief in U.S. District Court with arguments that take into consideration the Idaho Supreme Court’s ruling on the state’s abortion laws.

The Attorney General’s Office also asked the federal judge presiding over the case involving a U.S. Department of Justice lawsuit to reconsider a preliminary injunction put in place to protect physicians from criminal penalties.

The brief, written by Deputy Attorney General Steven Olsen, said the Idaho Supreme Court redefined the section of Idaho Code that bans nearly all abortions, with affirmative defenses for rape, incest and to save the pregnant person’s life. Medical providers who violate the statute face felony charges and suspension or permanent revocation of a medical license.

The Department of Justice filed suit last August seeking an injunction against Idaho law, arguing that it 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.

U.S. District Judge B. Lynn Winmill granted the government’s request to protect doctors who are handling emergency medical decisions from criminal penalties in situations such as ectopic pregnancies, where a nonviable fetus can jeopardize a pregnant person’s life, and miscarriages or other medical scenarios that fall into a medical gray area. Physicians submitted declarations supporting the federal government’s case, saying the law was too vague about what constitutes saving a person’s life and when the physician could reasonably intervene without risking felony charges.

While the injunction is in place, all state officials are prohibited from pursuing criminal prosecution or suspending or revoking medical licenses from medical providers or hospitals if an abortion is necessary to avoid jeopardizing a pregnant person’s health.

No conflict between Idaho law and federal act, attorney argues

Olsen wrote that the Idaho Supreme Court determined the ban does not require “objective certainty,” a medical consensus or a certain level of immediacy before an abortion can be deemed necessary to save a pregnant person’s life. The state also argued that the court held that ectopic and other nonviable pregnancies do not fall within the definition of abortion that is outlined in Idaho Code.

“Under what is now known to be the authoritative interpretation of Idaho law, this court’s preliminary injunction decision would come out differently,” Olsen wrote.

Olsen argued that the affirmative defense for physicians does not promote delays or worsen patient outcomes, and the Idaho Supreme Court’s determination that ectopic and nonviable pregnancies do not meet the definition of abortion means there is no conflict between Idaho law and EMTALA.

“The Idaho Supreme Court’s decision renders essential parts of this court’s preliminary injunction order unsupportable, and as a result, this court should deny the preliminary injunction that the United States seeks,” Olsen wrote.

Federal judge denies Legislature’s new motion to file briefs

Winmill also denied a renewed motion to intervene in the case by attorneys for the Idaho Legislature, which has asked the court to allow briefs from the Legislature’s perspective in the case. Winmill granted a limited intervention for the initial court appearance in August but said he would not allow the attorneys to file briefs on behalf of the Legislature moving forward.

After the Legislature’s attorneys, Monte Neil Stewart and Daniel W. Bower, asked Winmill to reconsider and implied that he was purposely delaying the case to see if the Idaho Supreme Court would rule differently, he denied the motion.

“The court can assure the Legislature that the state’s supposed ‘delays in acting on the Legislature’s motion for reconsideration’ did not result in the court’s putting off its decision … other factors, primarily the fact this court remains overburdened, caused this delay,” Winmill wrote in his decision.

“Because the Legislature has again failed to show that the state is inadequately representing its identical interest in defending Idaho’s abortion ban, its renewed motion to intervene as a matter of right is denied.”