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Federal judge appears likely to block restrictive Idaho abortion law

The Justice Department filed suit this month to halt the state's near-total ban on abortion, charging that it violates federal law.

A federal judge suggested Monday that he's likely to grant the Justice Department’s request to temporarily block an Idaho abortion law that is set to go into effect this week.

Judge B. Lynn Winmill heard arguments on the DOJ’s request for a preliminary injunction Monday and said he would issue a written order no later than Wednesday. The Idaho law, a near total ban on abortion in the state, is set to take effect on Thursday.

U.S. Attorney General Merrick Garland announced the lawsuit against Idaho at the beginning of August, saying that the state’s law conflicted with a federal statute known as the Emergency Medical Treatment and Labor Act, or EMTALA. That law requires doctors to provide the emergency medical treatment necessary to stabilize anyone who comes into an emergency room. “This includes abortion, when that is the necessary treatment,” Garland said at the time.

The lawsuit was the Biden administration’s first legal action to protect abortion access since June's Supreme Court ruling in Dobbs v. Jackson Women's Health, which reversed the 1973 ruling in Roe v. Wade that held there was a constitutional right to abortion.  

At the start of Monday’s arguments, Winmill, who was nominated to the bench in 1995 by President Bill Clinton, made it clear that the issue in the case is about a potential conflict between a state and a federal law, not about the legality of abortion.

“This is not a case about the wisdom of Dobbs or the wisdom of Roe v. Wade,” Winmill said. “Dobbs is the law of the land and that will not be questioned here.”

A large part of the arguments before the judge revolved around whether doctors would be prosecuted under the Idaho law for providing abortion care in compliance with their EMTALA requirements.

The Justice Department contended in court papers that the text of the Idaho law "criminalizes all abortions (no matter how medically necessary or life-saving), and allows medical professionals to avoid criminal liability only by proving an affirmative defense that is narrower" than what federal law requires.

Monte Stewart, an attorney for the Idaho Legislature, told the judge that prosecutors — and doctors — can still use common sense.

“Idaho is capable of many things but it is not capable of producing, now or in the future, a prosecuting attorney stupid enough to prosecute an ectopic pregnancy case,” Stewart said, adding he would have no qualms about advising doctors to use their best medical judgment when deciding what care to provide a pregnant patient who faces risk of death or permanent injury.

“In the real world there will not be a prosecution,” Stewart argued.

Deputy Assistant Attorney General Brian Netter pushed back on that argument, saying that doctors have told the Justice Department that the Idaho law will cause hesitancy in complying with EMTALA.

“There are circumstances in which a doctor hesitates, in which a doctor has to call the lawyers and get a legal opinion because it seems like Idaho law might be violated, or has to speak with Mr. Stewart about his sense of whether despite the statutory text, a prosecutor is going to bring the charges,” Netter said. “This is all in conflict with EMTALA and federal law which requires the care to be offered at the point where it’s necessary.”

Winmill didn't rule on the case but indicated in his closing remarks that he was skeptical of the argument about there being no risk of prosecution in the real world.

“Real world events are very hard to predict. The text of the statute is very easy to read and understand,” he said. “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.” 

Idaho Gov. Brad Little, a Republican, dismissed the lawsuit this month as "federal meddling" and said he'd work with the state attorney general's office to combat the DOJ's action.

“Our nation’s highest court returned the issue of abortion to the states to regulate — end of story,” Little said.