DOJ Ignores Supreme Court — Sues Idaho Over Abortion Ban

The Department of Justice filed suit Tuesday against Idaho’s almost total ban on abortion, even as the Supreme Court sent the decision back to the states. The administration said the ban conflicts with federal laws on emergency care for patients.

It is the first major legal challenge to a state abortion law from President Biden’s Justice Department after the Supreme Court ruling overturning Roe v. Wade.

Specifically, Washington said it violates the federal Emergency Medical Treatment and Labor Act (EMTALA) and potentially criminalizes doctors for medically stabilizing procedures.

This law has been in effect for over 30 years and requires the stabilizing procedures to be performed or an appropriate transfer to another facility that can provide them.

Idaho’s “trigger” law, set to take effect Aug. 25, bans abortions except in the case of rape or incest reported to law enforcement authorities. The part of the Idaho law that the DOJ contends is illegal is where it says the restrictions do not provide for necessary medical treatment.

Attorney General Merrick Garland told a news conference Tuesday that there is no provision for “medical treatment necessary to stabilize a patient’s emergency medical condition” when that treatment is abortion.

That, he said, violates federal law.

Under the law, a physician must determine that “in his good faith judgment” with the facts available, the abortion was critical to “prevent the death of the pregnant woman.”

The Justice Department said that is not enough, and that “serious jeopardy” to the woman’s health is also a necessary exception. Critics charge there are no provisions for an ectopic pregnancy, miscarriage complications, or severe preeclampsia.

Idaho Attorney General Lawrence Wasden (R) reacted in a statement that the DOJ chose to file a “politically motivated lawsuit” instead of “sitting down with the State of Idaho.” He declared that no effort was made to engage Idaho and reconcile the law.

Wasden added that the federal EMTALA law does not entirely preempt state restrictions on abortion.

Whatever the outcome, it is very likely only the first attempt to throw the might of the federal government against states’ ability to carry out the legal will of the people.