By Ruth Brown, Idaho Reports
After a federal judge sided with the Department of Justice last month regarding emergency medical abortions for pregnant patients, the Idaho Legislature filed a motion for reconsideration.
The motion filed late Wednesday challenged an order from U.S. District Judge B. Lynn Winmill, who prohibited prosecution of abortions in emergency situations at hospitals.
While Idaho’s abortion ban had narrow exemptions for reported rape, incest, and life of the mother, it didn’t include the health of the mother. The DOJ argued the law conflicted with the Emergency Medical Treatment and Labor Act, requiring all hospitals that accept Medicare to stabilize patients in a medical emergency. Sometimes, in situations such as an ectopic pregnancy or major hemorrhage, an abortion can be a necessary treatment for the health of a mother.
In the motion to reconsider, the Legislature’s attorneys argued that EMTALA and the state’s abortion ban does allow for emergency care. The Legislature hired private counsel, Daniel W. Bower and Monte Neil Stewart, for defense in the case, rather than using the Attorney General’s Office.
Both Stewart and deputy attorney general Brian Church defended the statute against the DOJ lawsuit in August, though Church acknowledged under his interpretation of a law, a doctor could potentially be held liable for terminating an ectopic pregnancy, while Stewart said no prosecutor would be “stupid enough” to do so. The Attorney General’s office has not appealed Winmill’s order.
“By crediting the Government’s misinterpretation of EMTALA—built on a deliberate omission of language requiring the protection of a pregnant woman’s unborn child—this Court’s preliminary injunction purports to enjoin the (Idaho abortion ban) where the language of EMTALA does not apply,” according to the motion.
The Legislature defended its bill.
“Idaho has not adopted the draconian scheme that the Court has described,” it wrote.
“No physician faces the gantlet (sp) of criminal prosecution, so long as he or she performs an abortion under the circumstances provided for by statute. Because the Court’s analysis of the central issue of preemption turns on an incorrect rendition of (the abortion ban), the preliminary injunction stands on a clear error of law,” according to the motion.
The state also objected to the court declining to address the constitutionality of the DOJ’s interference. It stated the court “exceeded its power as an inferior tribunal.”
The state asked the court to vacate its August order. As of Thursday morning, neither the DOJ nor the judge had issued a response.