Can sensible prosecutors save docs from Idaho’s abortion trigger law? Don’t bet on it
On Monday morning, federal Judge Lynn Winmill heard arguments in an action brought by the U.S. Department of Justice against the state of Idaho, seeking to block the implementation of Idaho’s abortion ban, which is set to take effect Thursday.
The federal government argues that the law conflicts with, and is preempted by, a federal law called EMTALA — the Emergency Medical Treatment and Labor Act, a Reagan-era law that requires emergency rooms to provide stabilizing care to anyone who shows up at their door.
The DOJ argued that Idaho’s ban could result in criminal charges against a doctor who provides stabilizing care to a woman whose pregnancy endangers her, as in the case of an ectopic pregnancy. (An ectopic pregnancy occurs when a fertilized egg implants outside of the uterus. The embryo is not viable, but the condition can endanger the pregnant person’s life.)
The Idaho Legislature’s response, presented by Monte Stewart, its attorney, was that doctors should not worry because Idaho prosecutors will be restrained enough not to prosecute such cases.
“Idaho is capable of many things, but it’s not capable of producing a prosecuting attorney stupid enough to prosecute an ectopic pregnancy,” Stewart argued, as quoted by James Dawson of Boise State Public radio.
Wanna bet?
In just the last few years, off the top of my head, I can think of an Idaho prosecutor who pulled a knife on someone during an argument at a horse race and a sheriff who pulled a gun on a bunch of young girls from a church youth group. I think Idaho has shown itself more than capable of producing a prosecutor stupid enough to charge a doctor for saving a woman’s life by ending a pregnancy that will not be viable.
And what will a doctor think, as they have to weigh the good judgment of their local prosecutor against the possibility of serious injury to their patient, and up to five years in prison? An especially brave one might choose the obviously ethical path, treat the ectopic pregnancy by removing the embryo, and face the risk of prosecution. A more cautious one might delay treatment until they feel they have a clear argument that the woman would likely die soon without intervention — and in the space between, that woman would face anguish and injury that could be life-altering.
And some doctors might simply say: “This isn’t my field. Go see someone else.”
As I read the tea leaves (and I am not especially good at this, so take it with a grain of salt) the most likely outcome seems to be that Winmill will block the implementation of the abortion ban in the narrow set of circumstances where it conflicts with EMTALA. That is, only in the cases where a woman presents at the emergency room requiring stabilizing treatment.
If Winmill rules this way, it will still cut off many means of health care to women in cases like ectopic pregnancy, where a nonviable fetus threatens to kill or seriously injure a woman.
The only sure way to resolve this situation is to change the law. Doing so will require putting different people in the Legislature.
This story was originally published August 22, 2022 at 12:42 PM.