On August 24, U.S. District Judge B. Lynn Winmill temporarily blocked part of Idaho’s law banning most abortions. The preliminary injunction granted by Winmill — who was nominated by former President Bill Clinton — prevents the enforcement of Idaho’s law when it conflicts with the 1986 federal Emergency Medical Treatment and Labor Act. The EMTALA purportedly ensures that patients are given adequate emergency medical care. The EMTALA applies specifically to hospitals and physicians that participate in Medicare.
Idaho’s partial ban, which goes into effect today, will apply to all abortions but those performed during medical emergencies, and those already permitted under the state’s law.
The decision comes as a result of the lawsuit filed on August 2 by the Department of Justice, which alleged that the state’s prohibition of most abortions had “extremely narrow” exceptions and conflicted with the EMTALA.
Winmill agreed with the DOJ, arguing that Idaho’s criminal abortion statute (Code 18-622) “stands as a clear obstacle to what Congress was attempting to accomplish with EMTLA” and “will undoubtedly deter physicians from providing abortions in some emergency situations.”
Under the EMTALA, an “emergency medical condition” includes: “a medical condition manifesting itself by acute symptoms of sufficient severity … such that the absence of immediate medical attention could reasonably be expected to result in” placing the health of the individual in “serious jeopardy,” “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part.”
The Department of Health and Human Services recently issued new “clarifying guidance” on the EMTALA, following President Joe Biden’s July 8 executive order on reproductive health. The purpose of the guidance was to reaffirm “that [the EMTALA] protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations.”
The guidance stipulates that if a pregnant woman “presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.”
On the matter of enforcement, the guidance specifies that any state actions against a physician who performs an abortion “in order to stabilize an emergency medical condition” would be pre-empted by the federal EMTALA statute.
Whereas Idaho’s criminal abortion statute (Code 18-622) permits abortions in emergencies where the killing of the child is regarded as lifesaving for the mother (as well as in cases of rape or incest), the language of the EMTALA, as taken up in HHS’ new guidance, requires abortions also be permitted in instances where they would be considered “health-saving.”
Winmill suggested that abortions that are not regarded as lifesaving in one moment may prove lifesaving moments later; that “it is not always possible for a physician to know whether treatment for any particular condition, at any particular moment in time, is ‘necessary to prevent the death’ of the pregnant patient.”
Winmill also claimed that Idaho’s law would serve as a deterrent to the provision of abortions, suggesting that physicians might be precluded from or delayed in following the letter of the EMTALA law if apprehensive about running afoul of the state’s criminal abortion statute. “Idaho’s criminal abortion law is to curb abortion as a form of medical care,” he wrote, thereby decreasing “the overall availability of emergency abortion care.”
As a result of this ruling, Idaho is barred from legally, professionally, or financially penalizing any medical provider or hospital for performing emergency abortions that aren’t necessarily lifesaving.
This ruling came one day after U.S. District Judge James Wesley Hendrix granted Texas a preliminary injunction against the enforcement of the EMTALA as interpreted in HHS’ July guidance.