If a prosecutor doesn’t enforce a law, does it actually violate the Supremacy Clause?

By Melissa Davlin, Idaho Reports

Medical emergencies, statutory language, and prosecutorial discretion dominated arguments over whether Idaho’s near-total abortion ban conflicts with federal law during a Monday morning hearing. 

At the beginning of the hearing, Judge Lynn B. Winmill acknowledged he had concerns over vague language in the statute that doesn’t state how imminent pregnant patients’ deaths must be to justify an abortion, or how likely it is they would die or be seriously injured. 

In its lawsuit filed against the state of Idaho earlier this month, the US Department of Justice says the Idaho abortion ban conflicts with federal law over emergency medical treatment. Under federal law, every hospital that receives Medicare funds must provide necessary, stabilizing treatment to patients in medical emergencies. The lawsuit says that Idaho’s new abortion law criminalizing physicians who provide abortions in those situations would violate the Emergency Medical Treatment and Labor Act, or EMTALA, if a woman sought help in a medical emergency.

Under the Supremacy Clause, federal law preempts state law in cases where two laws conflict.

The state statute, set to go into place on Thursday, contains narrow exemptions for reported rape, incest, and the life of the mother. Those exemptions are in the form of an affirmative defense – in other words, a built-in defense in which the medical professional who has been charged must present evidence in court that they used good-faith judgment and performed an abortion within the constraints of the ban. 

But the language in code doesn’t say anything about the mother’s health, the DOJ argued. Rare but serious pregnancy complications can include placental abruption, sepsis, membrane eruption, preeclampsia and more. Depending on the timing of the treatment, those complications could result in severe and life-long complications like organ failure. If a medical professional detects a fetal heartbeat, caring for the pregnant patient and ending the pregnancy could put them at risk of prosecution, said US Deputy Attorney General Brian Netter, who argued on behalf of the DOJ. That, he argued, violates EMTALA, and the Supremacy Clause.

In his opening remarks, Winmill said he had similar concerns. 

“My concern is in that setting, where the death of a patient is not likely but (the pregnancy) is still going to have a very serious medical consequences for the patient, there would seem to be an absolute conflict between EMTALA and the Idaho abortion statute,” Winmill said. 

Attorneys for both the State of Idaho and the Idaho Legislature defended the statute, but took different approaches. Deputy Attorney General Brian Church, who represented the state of Idaho, acknowledged the affirmative defense has no provisions for the health of the mother, even if continuing a pregnancy could affect organ function or result in a hysterectomy. 

“As the attorney for the hospital, you can only advise on what the law says,” Church said. 

Monte Stewart, who represented the Idaho Legislature, focused on prosecutorial discretion in those gray-area cases.

“In the real world, there will not be a prosecution,” Stewart said, adding no prosecutor is “stupid enough” to prosecute a medical provider who treated an ectopic pregnancy with an abortion. He acknowledged that the text has no provision for the mother’s health, but said his clients – the Idaho Legislature – didn’t intend to weaponize the law against physicians who are trying to save a woman from life-altering medical complications.

“What matters is what happens in the real world,” Stewart said. 

In his arguments, Netter pointed out that Idaho has 44 individual county prosecutors, all of whom may interpret the law differently. And even if Idaho’s current county prosecutors may not pursue a case against physicians or nurses, Idaho has a five-year statute of limitations on felony cases. As voters elect prosecutors every four years, nothing would stop a future official from pursuing that prosecution, Netter said. Idaho law also provides for grand juries to bring forth indictments. 

Even if no one pursues prosecution, Netter said, the very language of the statute could have a chilling effect on a physician who is trying to treat a pregnant patient. 

“The question here is how doctors are going to evaluate the statute,” Netter said. Because of the language in the law, a risk-averse physician may hesitate over how to treat a pregnant patient who has a placental abruption or other complication. 

In a June interview with Idaho Reports, Twin Falls County Prosecutor Grant Loebs acknowledged that the statute puts prosecutorial discretion and medical expertise on a collision course. Prosecutors will have to rely on medical experts to determine if a physician acted in “good faith,” and there’s a possibility those experts will disagree. Is it enough to say a woman would likely die, or had a good chance of dying? Must her death be imminent?  

“At that point, we will have potential battles of the experts, and like with anything that is based upon medical determination, it’s possible to have experts reach different conclusions,” Loebs told Idaho Reports. 

In his closing remarks, Winmill expressed doubt about relying on prosecutorial discretion to avoid conflicts with federal law, saying he didn’t believe the Idaho Legislature would pass a law it didn’t intend prosecutors to enforce.

“We look at statutory language,” he said. “We don’t guess at what a prosecutor will or won’t do.”

“I think it is not much comfort to a doctor in that there is a sitting prosecutor who they think will not enforce it, but no one knows for sure,” he said.

Winmill said he would issue a written decision on Tuesday or Wednesday, and indicated that if he does enjoin the statute, it wouldn’t be beyond the scope of EMTALA. 

Note: This story has been corrected after misattributing a quote from Judge Lynn Winmill to Brian Netter. Idaho Reports regrets the error.

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