The Biden administration is suing Idaho challenging a “near-total” ban on abortion the agency alleges conflicts with federal law that mandates abortion services for emergency care.
The Department of Justice’s (DOJ's) lawsuit, filed Tuesday, is the first legal challenge the administration has issued since the Supreme Court overturned Roe v. Wade in late June. It could have major ramifications for physicians who are trying to decipher conflicting guidance on delivering abortions in emergency situations.
“Federal law is clear: patients have the right to stabilizing hospital emergency room care no matter where they live. Women should not have to be near death to get care,” said Department of Health and Human Services (HHS) Secretary Xavier Becerra in a statement Tuesday.
HHS issued guidance last month saying physicians in hospitals that participate in Medicare have an obligation under the federal Emergency Medical Treatment and Labor Act (EMTALA) to provide abortions as part of emergency care such as for ectopic pregnancies.
But the DOJ is arguing that the Idaho law, which goes into effect Aug. 25, prohibits all abortions and conflicts with EMTALA.
If the law goes into effect, a prosecutor can indict and arrest a physician “merely by showing that an abortion has been performed, without regard to the circumstances,” the DOJ said in a release.
Idaho’s law does not provide any defense for an abortion necessary to protect the health of the patient but does have exceptions for rape or incest and to prevent the death of the mother.
Idaho's Republican Gov. Brad Little slammed the lawsuit in a statement Tuesday.
"Our nation’s highest court returned the issue of abortion to the states to regulate — end of story," he said. "The U.S. Justice Department’s interference with Idaho’s pro-life law is another example of Biden overreaching yet again."
The DOJ is seeking an emergency injunction to prevent the law from going into effect later this month.
While this is the first legal challenge brought by the federal government, other states are challenging the EMTALA guidance. Texas sued HHS last month surrounding the guidance, arguing the agency overstepped its authority.
The results from both lawsuits could have a lasting impact on state battles surrounding abortion, experts said.
"It could be the first of many," Jessica Waters, dean of undergraduate education for American University, told Fierce Healthcare.
Once the Supreme Court struck down Roe v. Wade, there were 13 states that banned abortion immediately, and another 13 have laws in place like Idaho’s that go into effect later, according to the think tank Guttmacher Institute.
Kansas is holding a ballot referendum Tuesday on an abortion ban.
Waters said that a successful result for HHS could give assurances to providers who have gotten conflicting information on abortion's role in emergency medical care.
"Where is that line? You don’t always know that at the beginning of a medical procedure or doing an assessment," Waters said. "A patient’s health could quickly deteriorate. Doctors need to be free to make those clinical judgments and without fear of prosecution."
A result for the government also could be a warning to other states with total bans that they need to include exceptions for the life and health of the mother, she added.