Federal judge blocks Idaho’s abortion ban for medical emergencies after Justice Department lawsuit

Hours before the state’s anti-abortion “trigger” law takes effect, a federal judge in Idaho has partially blocked a ban on abortion care in the state following a lawsuit from the US Department of Justice.

US District Court Judge B Lynn Winmill granted a preliminary injunction on 24 August that prohibits the state from enforcing the anti-abortion law “to the extent that statute conflicts” with the Emergency Medical Treatment and Active Labor Act. Health providers will not face prosecution or arrest if they provide abortions during emergency medical care.

The order follows a Justice Department lawsuit arguing that Idaho’s abortion ban violates federal law requiring doctors to provide emergency medical treatment, including abortions, despite anti-abortion restrictions at the state level.

The Justice Department sued Idaho on 2 August, marking the first federal legal challenge under President Joe Biden’s administration against state-level abortion laws in the wake of a US Supreme Court decision striking down the constitutional right to abortion care.

Idaho’s law, designed to take effect once the Supreme Court overturned Roe v Wade, makes abortion care a felony up to five years in prison. The law makes exceptions if the procedure is to prevent the death of the patient or in cases of rape or incest.

US Attorney General Merrick Garland has warned that the law threatens providers with arrest and prosecution if they perform an abortion to save the patient’s life, with the burden on doctors to prove they are not criminally liable for the care they provide.

“If the physician provides the abortion, she faces indictment, arrest, pretrial detention, loss of her medical license, a trial on felony charges, and at least two years in prison,” Judge Winmill wrote in her ruling on Wednesday.

“Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health — such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, or even death,” the judge wrote.

“And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication. All because Idaho law prohibited the physician from performing the abortion.”

The judge determined that the court must decide “whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation. It does.”

Idaho is among three states, along with Tennessee and Texas, where so-called “trigger” laws outlawing abortion care in nearly all cases are scheduled to be effective on 25 August.

At least nine other states – Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota and Wisconsin – have effectively outlawed all abortions after the demise of Roe.

Two other states – Georgia and Ohio – have outlawed abortion at roughly six weeks of pregnancy, before many people know they are pregnant.

Idaho, Tennessee and Texas also banned abortion at six weeks before their near-total bans on abortion care went into effect.

On 23 August, a federal judge in Texas blocked enforcement of the Biden administration’s rule under the Emergency Medical Treatment and Active Labor Act, which the Justice Department has argued the state of Idaho is violating with its anti-abortion law.

US District Judge James Wesley Hendrix, an appointee of Donald Trump, said that guidance issued by the administration was “unauthorised” and “well beyond” the text of the law, which is “silent on abortion”.

A late filing from attorneys for Idaho in that state’s case on Wednesday said they have “not yet had a full opportunity to consider how the Texas court’s decision should be persuasive in aspects of this current lawsuit, or in the pending preliminary injunction motion.”