By Ruth Brown, Idaho Reports

The Idaho Attorney General’s Office joined the Legislature on Wednesday in asking a judge to reconsider his decision after he sided with the Department of Justice last month regarding emergency medical abortion.

The motion comes after U.S. District Judge B. Lynn Winmill prohibited the prosecution of abortions in emergency situations at hospitals, after the DOJ and U.S. Attorney General Merrick Garland requested an injunction in August.

“This case is not about denying necessary medical care to save the lives of women,” the Idaho AG’s Office wrote in its motion. “This case is about preserving for the state its sovereign power to regulate abortions within its boundaries.”

It went on to say that Winmill’s order “misinterpreted both the relevant state and federal statutes and, in so doing, created a nonexistent conflict that has significant federalism and state sovereignty concerns.”

The Idaho Legislature filed a similar motion for reconsideration on Sept. 7, but that was filed by private counsel rather than the Attorney General. 

Both motions challenge the decision revolving around the DOJ’s claim that Idaho’s near total abortion ban violates a federal law called the Emergency Medical Treatment and Labor Act. EMTALA requires all hospitals that accept Medicare to stabilize patients in a medical emergency, including pregnant women in emergency situations.

In some cases, such as an ectopic pregnancy or major hemorrhage, abortion may be the necessary treatment to save the life of the mother. 

The state took issue with the judge’s interpretation of EMTALA. 

The state believes under EMTALA, “a hospital must, within its capabilities, provide ‘such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.’ This is not a ‘necessary to avoid’ standard, which expands EMTALA requirements to a prevention, as opposed to stabilization, standard. The injunction also broadens EMTALA’s reach by applying it to ‘any medical provider or hospital,’ not just those subject to EMTALA.”

The state called the interpretation by the court a clear error.

“Understanding EMTALA as mandating abortions as medical care is an afront (sic) to the State’s sovereignty and police power,” the state AG’s Office wrote.

Winmill has not yet agreed to reconsider his earlier decision, as of Thursday morning. 

Meanwhile, there are multiple pending lawsuits that the Idaho Supreme Court will hear oral arguments on next week, on Sept. 29, regarding challenges  brought against the state after anti-abortion legislation passed. Idaho Reports will report on those arguments next week.

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