Judge won’t reconsider order protecting Idaho ER doctors from abortion prosecutions

The attorney general could appeal Winmill’s decision to the Ninth Circuit

By: - May 9, 2023 7:12 am
James A. McClure Federal Building in Boise

James A. McClure Federal Building; United States Courthouse in Boise on March 20, 2021. (Otto Kitsinger for Idaho Capital Sun)

A federal judge denied Idaho Attorney General Raúl Labrador’s request to reconsider the order barring the state from prosecuting emergency room physicians for providing abortion care to stabilize a patient.

U.S. District Judge B. Lynn Winmill made his initial decision to block part of Idaho’s ban on abortions in August, just before the ban went into effect, following a lawsuit filed by the U.S. Department of Justice against the state.

Idaho’s ban on abortion applies to all stages of pregnancy and makes exceptions only for documented cases of rape and incest or to save the pregnant person’s life.

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The Justice Department argued that the ban conflicts with the federal Emergency Medical Treatment and Labor Act, which requires hospitals that accept Medicare to provide stabilizing medical care for all those who come to the hospital with an emergency. Winmill ruled that the two laws were in conflict and the federal law superseded the state law.

Attorneys within former Idaho Attorney General Lawrence Wasden’s office filed a motion to reconsider in late September, and that request remained open through January, when Labrador took office following his victory in the midterm elections.

State: Idaho Supreme Court ruling resolved issues with abortions in ERs

Labrador’s office in early February filed a brief arguing that the Idaho Supreme Court’s ruling to uphold the state’s abortion ban made the federal injunction unnecessary, because the ruling had clarified criminal penalties do not apply in situations such as ectopic pregnancy, miscarriages and other medical scenarios that fall into gray areas.

Judge B. Lynn Winmill
Idaho District Court Judge B. Lynn Winmill (Courtesy of District of Idaho courts)

Winmill said his decision did not only apply to ectopic and other non-viable pregnancies. He listed several other instances when an abortion might be necessary, such as when the amniotic sac surrounding a fetus ruptures — better known as water breaking — and leaves the pregnant person open to infection within hours, or when a placental abruption leads to hemorrhaging.

“In each of these scenarios, the stabilizing care EMTALA requires a physician to offer may include terminating a still-developing pregnancy covered under the Idaho Supreme Court’s more limited definition of ‘abortion,’” Winmill wrote. “Thus, the exclusion of ectopic and other nonviable pregnancies from the total abortion ban does not negate the continuing need to enjoin the ban to the extent it still clearly conflicts with EMTALA.”

Winmill’s decision also referenced the affirmative defense aspect of the original abortion ban. That part of the ban still applies until July 1; the Idaho Legislature passed a bill in March removing the affirmative defense language, and that takes effect July 1. Under the existing language, a physician would have to prove in court that the abortion was performed to save the pregnant person’s life to avoid legal consequences.

Labrador’s press secretary, Emily Kleinworth, did not respond to a request for comment by email on Monday. The attorney general’s office could appeal Winmill’s decision to the Ninth Circuit Court of Appeals.

Decision still to come in Planned Parenthood lawsuit against Labrador

Another pending case before Winmill is a lawsuit filed by Planned Parenthood Great Northwest following a legal opinion issued by Labrador at the end of March.

Labrador sent the opinion to Rep. Brent Crane, R-Nampa, who requested it on behalf of anti-abortion clinic Stanton Healthcare. Labrador said in the letter that abortion pills are included in Idaho’s abortion ban, and medical professionals who supply them are subject to the state’s criminal penalties, including those who refer and prescribe the pills to pregnant patients across state lines.

Planned Parenthood and two Idaho doctors said that opinion violates the First Amendment, the due process clause and the commerce clause of the U.S. Constitution. Labrador rescinded the initial letter in early April after the lawsuit was filed, but he has not said the legal advice contained in it was incorrect. His deputy attorneys argue that rescinding the original letter negates the basis for the lawsuit.

Providers at two of the largest hospital systems in Idaho, St. Luke’s and Saint Alphonsus health systems, have said they will not be referring patients for any type of abortion care in other states until the lawsuit is resolved.

At a hearing in late April, Winmill said he would decide as quickly as possible whether to issue an order barring county prosecutors across the state from using the legal opinion as a basis for prosecution under Idaho’s abortion laws.

Since that hearing, Labrador’s office has filed several briefs, including declarations from 12 county prosecutors stating they did not take the legal opinion as a directive or guidance. Several other prosecutors signed a brief supporting a motion to dismiss the case entirely. Planned Parenthood has expressed its opposition to the motions in replies.


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Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University. Moseley-Morris started her journalism career at the Moscow-Pullman Daily News, followed by the Lewiston Tribune and the Idaho Press.