BOISE, Idaho — The United States Department of Justice and the State of Idaho, in a back and forth during a preliminary injunction hearing, seemed to reflect to the presiding judge that the application and enforcement of Idaho's abortion law may be unclear.
"It seems to be just an absolute conflict between EMTALA and Idaho's abortion statute," United States District Judge B. Lynn Winmill said in the courtroom on Monday.
The DOJ sued Idaho over its near-total abortion ban, claiming it violates the Emergency Medical Treatment and Labor Act (EMTALA), which requires anyone coming to an emergency room to be stabilized and treated, because health complications and other risks, like preeclampsia, sepsis or organ failure can stem from a pregnancy and require an abortion.
However, health risks are not listed as an exception under Idaho Code 18-622, only what is "necessary to prevent the death of the pregnant woman" as well as an exception if a pregnant person can provide a police report of rape or incest.
The hearing on Monday was set to request a judge to put a "pause" on the abortion law set to go into effect on Thursday, which will effectively ban most abortions in the state through criminal prosecution of doctors who perform them. DOJ's goal, said Deputy Assistant Attorney General Brian Netter, is to make Idaho law yield to EMTALA when necessary.
The DOJ is requesting injunctive relief, which would restrain Idaho from applying part of the code that conflicts with EMTALA. In order for Winmill to decline to put a pause on the abortion law, he told the State that they must prove there is no conflict with federal law whatsoever.
Currently, a 6-week abortion ban is in place in Idaho as of Aug. 19, holding providers accountable if they provide abortion care after a patient is 6 weeks pregnant. It is still unclear if the ban would end when the trigger law goes into effect since the trigger law supersedes the 6-week law. KTVB reached out to the Attorney General's office for comment, but they declined to clarify.
Netter said that he found a meeting from the House State Affairs Committee on March 16, 2020, to be "rather telling," an interaction where Rep. Brooke Green, D-Boise, asked Rep. Todd Lakey, R-Nampa, if there would be any exceptions in the abortion bill for the health of the mother. He responded, "it weighs less, yes, than the life of the child."
Idaho Deputy Attorney General Brian Church said he is bound by what the legislature writes -- and that because there is an "affirmative defense" in the statute for doctors providing abortions to do it under "good faith" judgement, there is no conflict with federal law. If a doctor feels the need to provide an abortion, they can do so under good faith without fear of prosecution, he said.
In a criminal proceeding, the state holds the burden of proof to relay to a jury if someone is guilty. In this scenario, Netter said, the roles would be reversed -- the doctor or physician would have the burden of proof to show a jury they should not be thrown in jail for providing abortion care. If they cannot prove they have met the standard of the law, which is extremely narrow, they would face up to five years in prison.
Church said he didn't see much material difference with the problem of an exception versus an affirmative defense, however, even if it came to an ectopic pregnancy, which are not viable and could be life threatening to the pregnant patient because the fetus develops outside the uterus and can cause fallopian tube rupture. Church admitted to Winmill that an ectopic pregnancy is still a pregnancy and thus, applies under the statute.
But, according to the Legislature's attorney Monte Stewart, no prosecuting attorney would be "stupid enough to prosecute an ectopic pregnancy" even though an ectopic pregnancy still falls within the line of the abortion law.
Stewart said "in the real world" if a doctor called him from an emergency room with a potential emergency abortion, "there would be no prosecution," but Winmill said he is bound by what the law text reads, not what "happens in the real world" and that the "legislature would not have adopted the law unless they intended for it to be enforced.”
Winmill, seeking clarification on the scope of how the law would be applied, threw out hypothetical situations he wanted Church to answer, possibly as someone who has a client that would need to perform an emergency abortion and was looking for legal advice.
"Let's say it's preeclampsia. They've tried to control medically and they've been unable to, and the accepted medical practice at that point is an abortion. Basically, her blood pressure's completely out of control," Winmill said. "There is at least a fifty-fiftty likelihood that she will die. She also indicates that she's completely risk averse and does not want to take any chance that she'll be prosecuted, even though she might be able to succeed on an affirmative defense. So as her attorney, do you advise her that she can perform the abortion under the statute without any risk of prosecution?"
Church said he could only advise on what the law would do.
Winmill went on: "The patient will not die, but there's 90% chance she'll suffer a stroke of permanent damage to her vital organs such as her heart or liver, what's your answer that?"
"It's the same answer," Church said, and added that the exceptions for good faith still apply. "I would just be advised as to what the statute says, your honor."
Winmill is expected to issue a written decision in the matter on Tuesday or Wednesday, as the trigger ban goes into effect Thursday.
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