BOISE, Idaho — Seventeen more states are asking to weigh in on the U.S. Department of Justice’s lawsuit against Idaho over its strict abortion ban.
The Justice Department sued the Republican-led state of Idaho earlier this month, saying the abortion ban set to take effect Thursday violates a federal law requiring Medicaid-funded hospitals to provide “stabilizing treatment” to patients experiencing medical emergencies.
In July, President Joe Biden’s administration told hospitals that the Emergency Medical Treatment and Labor Act, or EMTALA, requires them to provide abortion services if the life of the pregnant person is at risk.
In court documents filed Friday, Alabama, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming characterized the federal government’s guidelines as “EMTALA’s grant conditions” and said they do not have the power to preempt state law.
Using the Supremacy Clause to enforce conditions of federal grants is “fundamentally, a non-starter,” the states said in court documents.
The states also contend that the Idaho abortion law does not directly conflict with the federal law because it’s possible for hospitals to comply with both, simply by turning down federal funding.
The Idaho abortion ban makes performing an abortion a felony, but it allows physicians to defend themselves in court by showing that the procedure was necessary to save a patient’s life.
State governments from across the U.S. are watching the case closely.
Earlier this week, 20 states and Washington., D. C., filed a friend of the court brief siding with the federal government and contending that their own residents would be put at risk should they have a medical emergency while pregnant and in Idaho. Neighboring states like Oregon and Washington also said they fear the “spillover effect” the abortion ban would create as Idaho patients with ectopic pregnancies or other emergencies are forced to seek out-of-state care.
Coalitions of major medical associations, including the American College of Emergency Physicians, the American College of Obstetricians and Gynecologists and others, have also filed briefs in the case, saying Idaho’s law is too vague and difficult to medically interpret, and that it would force health care providers to choose between violating state law and being charged with a crime, or violating federal law and facing fines and the loss of federal funding.
The medical organizations also say the law puts pregnant people in grave danger by limiting or delaying the type of care they can obtain in emergencies.
U.S. District Judge B. Lynn Winmill is scheduled to hear arguments Monday morning on whether the law should be temporarily stopped from taking effect while the lawsuit moves forward in court.
Either way, most abortions are now illegal in Idaho. A law criminalizing performing or assisting in an abortion after about six weeks’ gestation officially went into effect Friday. The law includes exceptions for abortions performed in medical emergencies or in cases of rape or incest — as long as the pregnant person provides the physician with a copy of a law enforcement report, which generally takes weeks or months to obtain in Idaho.
The total abortion ban will supersede the existing ban if it is allowed to go into effect Thursday.
Still, abortions have effectively been banned in the state since Aug. 12, when the Idaho Supreme Court said another law allowing potential relatives of an embryo or fetus to sue abortion providers for at least $20,000 could take effect. Under that law, a rapist would be barred from suing, but a rapist’s family members would be allowed to sue.