DOJ lawsuit on abortion ban backed by 20 states, national physicians organizations
By Ruth Brown, Idaho Reports
With Idaho’s near total abortion ban just nine days away from taking effect, multiple states and organizations have filed motions supporting the Department of Justice’s lawsuit to halt the law.
Twenty states and the District of Columbia support the DOJ’s lawsuit, asking the court to stop the law from going into effect.
The American College of Emergency Physicians, the American College of Obstetricians and Gynecologists, and the American Medical Association also filed a brief supporting the DOJ, outlining a variety of concerns around the law that would criminalize physicians for providing abortion care. The statute has narrow exemptions for reported rape, incest, and the life of th emother.
The DOJ lawsuit focuses on the lack of clarity around the life of the mother.
“Physicians will be faced with an untenable choice—either to withhold critical stabilizing treatment required under EMTALA or to risk criminal prosecution and potential loss of their professional licenses,” the complaint says.
EMTALA, the Emergency Medical Treatment and Labor Act, is a federal law requiring any hospital that accepts Medicare to stabilize any patient who comes into a facility in need of emergency care. The DOJ argues Idaho’s law conflicts with EMTALA.
Under the law, set to go into effect Aug. 25, any provider who performs an unlawful abortion is subject to a felony punishable by two to five years in prison.
The national medical organizations that filed a brief Monday take issue with the vagueness in state’s exemption for life of the mother in an emergency situation.
The law states if a physician determines “in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman. No abortion shall be deemed necessary to prevent the death of the pregnant woman because the physician believes that the woman may or will take action to harm herself.”
“The law disregards standard medical practice and purports to force physicians to delay care until a patient’s medical condition deteriorates to the point of becoming life-threatening,” the providers’ complaint says.
It addressed situations such as ectopic pregnancies, which are always life-threatening if untreated and never result in a viable pregnancy. “An ectopic pregnancy occurs when a fertilized egg implants and grows in a location that cannot support the pregnancy,” the complaint states.
If an ectopic pregnancy is not addressed the woman is at risk for “rupture and massive internal bleeding, requiring urgent surgery and risking death.”
They also cites pregnancy complications such as a uterine hemorrhage, in which physicians would be forced to wait until the amount of blood lost became “life-threatening” before an abortion could be induced.
In miscarriages, pregnant women who seek emergency department care could also face issues, the complaint argues.
“(A)n abortion is the necessary treatment in the event of uncontrolled bleeding from, for example, placental abruption or an ongoing miscarriage, even when fetal cardiac activity may still be detectable,” according to the complaint.
Largely, the complaint takes issue with the difference between “health threatening” and “life threatening” complications, proposing a variety of questions physicians may face.
“No clinical bright line defines when a patient’s condition becomes life-threatening. At what point does the condition of a pregnant woman with a uterine hemorrhage deteriorate from health-threatening to life-threatening? How many blood units does she have to have lose? One? Two? Five? How fast does she have to be bleeding? Soaking through two pads an hour? Three? How low does her blood pressure need to be? 90 mm HG over 60 mm HG? 80 over 50? And at what point in time does the condition of a pregnant woman with sepsis from a uterine infection deteriorate from health-threatening to life-threatening? If the standard treatment of IV fluids does not stop her blood pressure from dropping, is her condition now life-threatening?” the complaint questions.
They also argue the law would disproportionately impact women in rural areas and women of color.
The organizations asked the court to grant the DOJ’s injunction.
The states that supported the lawsuit included California, New York, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, and Washington, and the District of Columbia.
In the motion, states say they have “a strong interest in protecting the rights of their residents who may need emergency medical care while present as students, workers, or visitors in Idaho and other states that may attempt to prohibit emergency abortion care contrary to EMTALA’s requirements. In addition, if patients in Idaho are denied necessary emergency abortion care, they may travel to nearby states (including amici Oregon and Washington) to receive the emergency care they need. These States would thus experience additional pressures on their already overwhelmed hospital systems, especially in the rural and underserved areas of Oregon and Washington that border on Idaho.”
They also ask the court to support the DOJ’s injunction.
As of about 12 p.m. Tuesday, the Idaho Attorney General’s Office had not yet filed its response to the DOJ’s complaint. According to the Idaho Capital Sun, District Judge Lynn B. Winmill has partially granted the Idaho Legislature’s request to intervene.
Arguments in the case are set to be heard on Aug. 22 at the federal courthouse in Boise.