James A. McClure Federal Building; United States Courthouse in Boise on March 20, 2021. (Otto Kitsinger for Idaho Capital Sun)
The Idaho Legislature is asking District Judge B. Lynn Winmill to amend the order partially blocking Idaho’s abortion trigger ban or vacate the order entirely, according to a motion filed by attorneys for the Legislature on Wednesday night.
Winmill granted a pause two weeks ago on the Idaho law banning nearly all abortions as it applies to emergency care at hospitals, following a challenge by the U.S. Department of Justice in early August. The department argued the law 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. Violating the federal EMTALA law can result in a hospital losing its ability to receive Medicare payments, which is one of the main sources of revenue for hospitals.
Idaho’s abortion ban went into effect the day after Winmill’s ruling, but doctors facing emergency medical decisions are protected from penalties under the abortion ban while the preliminary injunction is in place. According to the order, the injunction will be in effect until a final judgment is reached in the case at a later date.
Idaho’s trigger law prohibits abortion in Idaho in nearly all cases, with potential 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.
Prior to Winmill’s ruling, attorneys from Morris Bower & Haws who represent the leadership of the Idaho Legislature — Senate Pro Tempore Chuck Winder, R-Boise, and Speaker of the House Scott Bedke, R-Oakley — proposed alternate language that would limit the scope of the injunction. Under the proposed language, the pause would only extend to medical treatment intended to stabilize a patient, and any criminal action taken against a medical provider or hospital for performing an abortion would only be prohibited when the withholding of emergency medical treatment would result in serious impairment to bodily functions or organs.Exhibit Amending EMTALA Order
In a brief attached with the motion to reconsider, the attorneys said the federal government left out consideration for language in EMTALA that orders physicians to consider the health of the pregnant person or the unborn child.
“As this language reveals, Congress drew its line to protect both the mother and the unborn child in an emergency medical situation. By contrast, (President Joe Biden’s) Administration draws its line to eliminate all protection for the unborn child in such situations,” the brief said.
The brief says the Department of Justice left out protection for the unborn child in its court filings. Although the language does appear in the initial request for an injunction, the “unborn child” portion is not part of the proposed order submitted by the Justice Department.
“Moreover, and distressingly, the DOJ was erasing Congressional language expressly written to protect the health of preborn children in order to expand the injunction’s scope and, thereby, greatly increase the risk of death for such children,” the brief said. “That purpose squarely contradicts EMTALA’s clear language and Congress’s evident intent that ‘the health of . . . the unborn child’ not be put ‘in serious jeopardy.’”
The order that is in place does not carve out stabilizing treatment and includes protection for providers who perform an abortion to avoid placing a pregnant patient’s health “in serious jeopardy.”
“Allowing the criminal abortion ban to take effect, without a cutout for EMTALA-required care, would inject tremendous uncertainty into precisely what care is required (and permitted) for pregnant patients who present in Medicare-funded emergency rooms with emergency medical conditions,” Winmill wrote in the order.
The court has not yet scheduled another hearing in the federal case.Brief memo supporting motion to reconsider - DOJ
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