By Ruth Brown, Idaho Reports
The state has responded in federal court documents to the U.S. Department of Justice’s efforts to stop the near total abortion ban that’s set to take effect Aug. 25.
In its lawsuit filed earlier this month, the DOJ says that under federal law, every hospital that receives Medicare funds must provide necessary, stabilizing treatment to a patient who arrives at an emergency room. The lawsuit says that Idaho’s new abortion law criminalizing physicians who provide abortions would violate the Emergency Medical Treatment and Labor Act, or EMTALA, if a woman sought help in a medical emergency.
In a Tuesday filing, the Idaho Attorney General’s office claims an emergency department could “stabilize” the woman and transfer her to another individual or care facility that does not accept Medicare for further treatment.
“A hospital’s obligation to a patient in the emergency department with an emergency medical condition under EMTALA is not indefinite or unlimited,” the state argues. “Rather, the requirement to provide stabilizing treatment ends when either: (1) the patient is stabilized within the limits of the capabilities of the staff and facilities of the hospital; or (2) the hospital transfers the person to another hospital in accordance with EMTALA’s requirements.”
Earlier in the day Tuesday, multiple national medical organizations representing physicians and providers expressed concern about the safety of the new law and its potential threat to a pregnant woman’s safety if she came to an emergency department.
The DOJ’s lawsuit expressed concern that if a court doesn’t agree that an abortion was medically necessary, physicians could face two to five years in prison and a felony conviction. The DOJ and physicians also take issue with the vagueness around the state’s new law and when a woman’s condition becomes life-threatening, rather than life-harming – a concern that Idaho prosecutors have also raised.
“Physicians, of course, can represent their own interests if prosecuted under Section 18-622 or through a pre-enforcement challenge if they face imminent threat of prosecution or professional discipline,” the Idaho AG’s response says.
The state also argues it is not depriving people of their rights to the Medicare program with the new law.
“Idaho is regulating abortion through a criminal statute of general applicability, just as it regulates other aspects of offenses that it deems inimical to the public interest,” according to the response.
“The United States seeks here to undermine Idaho’s policy choice of how to regulate abortion, …, by wielding its substantial financial clout under the Medicare program to invalidate that choice,” the response says. “Rather than awaiting an actual instance of supposed conflict, it asks this Court for broad injunctive relief that far exceeds what settled legal principles countenance.”
Arguments in the case are scheduled for Aug. 22 at the federal courthouse in Boise.