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Biden's DOJ Grows Spine, Sues Idaho in First Move to Protect Abortion Rights

This is the federal government's first legal challenge since the Biden administration announced a lackluster executive order in July.

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 Associate Attorney General Vanita Gupta and Attorney Merrick Garland at a press conference announcing that the Department of Justice has filed a lawsuit seeking to block Idaho’s abortion ban, which is set to take effect at the end of the month.
Associate Attorney General Vanita Gupta and Attorney Merrick Garland at a press conference announcing that the Department of Justice has filed a lawsuit seeking to block Idaho’s abortion ban, which is set to take effect at the end of the month.
Photo: Drew Angerer (Getty Images)

President Joe Biden’s Department of Justice appears to have grown a bit of a spine. On Tuesday, Attorney General Merrick Garland announced that the department has filed a lawsuit to block Idaho’s “near-absolute ban on abortion.”

The lawsuit, which was filed in federal court in southern Idaho, contends that hospitals that receive Medicare dollars are required to stabilize patients who come through hospital emergency rooms due to the Emergency Medical Treatment and Labor Act. It’s here that Idaho’s ban—which is set to take effect on August 25—is in violation of federal law, according to the DOJ.

“In some circumstances, medical care that a state may characterize as an ‘abortion’ is necessary emergency stabilizing care that hospitals are required to provide under EMTALA. Such circumstances may include, but are not limited to, ectopic pregnancy, severe preeclampsia, or a pregnancy complication threatening septic infection or hemorrhage,” the lawsuit states.

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At least 43 Idaho hospitals receive Medicare dollars, according to the filing. There are emergency rooms in at least 39 of those hospitals.

Idaho’s abortion ban was signed in 2020 as a “trigger law” meant to take automatic effect in the event that Roe v. Wade was overturned. The law makes it a felony to provide abortion care and requires providers to give evidence that would negate their criminal liability (aka an affirmative defense). A provider can only do this by adequately proving “the abortion was necessary to prevent the death of the pregnant woman” or proving that the patient reported their rape or incest to the proper authorities before seeking the abortion. If the ban goes into effect at the end of the month, it will make securing reproductive healthcare a minefield in Idaho.

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The DOJ is seeking a declaratory judgment to permanently invalidate the state law under the Constitution’s supremacy clause. On July 29, the department sent a letter to the Idaho state government to attempt to adjudicate the issue without a lawsuit, but obviously the two sides did not reach an agreement.

This is the federal government’s first legal challenge since the administration’s executive order in July, in which Biden promised to use the EMTALA to “clarify physician responsibilities and protections.” On July 29, the DOJ sent a letter to the Idaho state government seeking to adjudicate the issue without a lawsuit—clearly the two sides did not reach an agreement. Now, the DOJ is seeking a declaratory judgment to permanently invalidate the state law under the Constitution’s supremacy clause.

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Since the Supreme Court overturned Roe at the end of June, 10 states have totally outlawed abortion. Four states have enacted six-week abortion bans, and several other state bans have been temporarily or permanently in court.