Judge’s ruling won’t save these women from Idaho’s extreme abortion ban
Judge Lynn Winmill released his decision blocking the state of Idaho from enforcing its total abortion ban in limited circumstances on Wednesday night.
Winmill found that the U.S. Department of Justice is likely to prove that the ban will conflict with the federal Emergency Treatment and Labor Act, a Reagan-era law that requires hospitals to provide emergency stabilizing care to anyone who shows up at their door in need of it.
Winmill’s reasoning is sound. It is obvious that there would be many conflicts between EMTALA and Idaho’s criminal law banning abortions, and the U.S. Constitution declares that federal laws trump state ones. But Winmill’s sound legal reasoning has an unfortunate consequence: Idaho’s abortion ban is blocked only in those cases where there is a conflict with EMTALA.
This is the kind of restrained, professional reasoning we have come to expect from federal courts — and it stands in sharp contrast to the reasoning adopted by the U.S. Supreme Court, now packed with conservative activists committed to reinterpreting the Constitution to meet the needs of the Republican Party.
Winmill’s judgment means that at least women who have an ectopic pregnancy will be able to get care for that life-threatening condition — along with other conditions such as preeclampsia and placental abruption.
Winmill’s decision could save hundreds of lives each year from the callousness of the lawmakers who backed this bill — who were warned repeatedly that the law would block life-saving health care. (There were about 22,000 live births in Idaho in 2020, and a 2021 study suggests there are around 11 to 14 emergency department ectopic pregnancy diagnoses for every 1,000 live births, suggesting there are around 250 to 300 Idaho women who will have a life-threatening ectopic pregnancy each year.)
But Idaho voters should understand clearly: This narrow ruling does nothing to forestall the loss of abortion access to many women across the state.
It does nothing for a 12-year-old victim of incest who becomes pregnant, for example. Under Idaho law now in effect, she will need to present a police report in order to access an abortion. It is ludicrous to expect that she would have the wherewithal to file a police report against a rapist who is also her caretaker — is she supposed to ask him for a ride to the police station?
So the portions of Idaho’s law still in effect will force that girl to bring that pregnancy to term unless it becomes life-threatening.
Winmill’s ruling does nothing for women who become pregnant because of rape but who don’t file a police report — something many women who are raped choose not to do for a variety of reasons.
Starting today, they will be forced to decide whether to file a report — risking retaliation from their rapist, or whatever other harms led them to decide not to file a report — or to give birth to their rapist’s child. Even if they do file a report, it is unclear how long it would take a police department to conclude its investigation and release the police report. It’s highly unclear that this will reliably happen before a rape victim is forced to give birth against her will.
These were the easily foreseeable effects of the law when it was passed — Republican lawmakers were warned of precisely this repeatedly, but they wanted to campaign on their anti-abortion bona fides in the primary.
“The health of the woman is irrelevant as it pertains to this bill?” she asked him.
“I would say it weighs less, yes, than the life of the child,” he replied.
Today that callousness becomes the law of the land.
So Winmill’s limited ruling will not save Idaho women from tremendous harm. The lives of many Idaho women will be shattered because of the decisions our elected lawmakers have made. The toll begins mounting today.
It is highly unlikely a court will go further than Winmill’s injunction. Fixing this situation will require electing different people to the Legislature. There is no other way.
This story was originally published August 25, 2022 at 11:20 AM.