Idaho is at the forefront of implementing cruel anti-abortion restrictions on top of already existing abortion bans.
The Christian nationalist Alliance Defending Freedom (ADF) is launching its latest attack on abortion rights and life-saving medical treatments in the state. It is calling on the U.S. Supreme Court to take emergency action in a federal case that will decide whether emergency room physicians in Idaho can be protected from prosecution under the state’s current abortion ban. ADF filed an emergency stay request with the High Court on Nov. 28. Emergency stay requests go to the Supreme Court’s emergency docket, also known as the “shadow docket.” ADF’s application for a stay pending appeal asks the Supreme Court to allow Idaho’s draconian abortion law to take effect while the case continues through the court system.
After the Biden administration sued Idaho in federal court in 2022, U.S. District Judge B. Lynn Winmill ruled in agreement with it that Idaho’s comprehensive abortion ban was in violation of the federal Emergency Medical Treatment and Labor Act. The measure requires any medical system that accepts Medicare funding to provide necessary stabilizing care to all patients who come into emergency rooms regardless of ability to pay, including pregnant patients. “To stabilize” is defined as ensuring a patient’s condition will likely not deteriorate in any crucial way if they are transferred to another medical facility.
The debate is whether the Emergency Medical Treatment and Labor Act includes abortions that are deemed necessary by an ER physician. Idaho’s abortion ban is applicable to all stages of pregnancy and only includes an exception to save the pregnant patient’s life, not including the preservation of the pregnant person’s health.
Winmill blocked Idaho’s abortion ban from being administered in emergency situations, a decision unfortunately reversed by a 9th U.S. Circuit Court of Appeals panel three months ago. Its ruling permitted the Idaho Legislature to fully enforce the abortion ban once again, arguing that the exception for preventing the death of the pregnant patient was enough.
During this time, one pregnant patient was forced to transfer to Salt Lake City when her water broke at 20 weeks pregnant, about five months into her pregnancy. The woman developed an infection in her uterus, which can lead to septic shock and organ failure, and was forced to board a small hospital plane to be transferred to Utah. There is virtually no chance that a fetus can survive outside the womb at 20 weeks, but because Idaho’s abortion ban does not have an exception for preserving the pregnant patient’s health, only to prevent death, the physician was compelled to transfer the patient.
In October, the 9th Circuit reheard the case and blocked the law from taking full effect in emergency situations, ruling that the case will be considered before a larger panel of judges (or an “en banc” review). Oral arguments are scheduled to be heard starting Jan. 22 next year. Alliance Defending Freedom-backed attorneys argue that because the 9th Circuit did not present a reason for having the case reconsidered, a Supreme Court intervention is needed.
If the Supreme Court indeed decides to intervene, it would be the first time the court would weigh in on punishing physicians administering abortions after overturning the constitutional right to have abortions.
Idaho was the first state to adopt an “abortion trafficking” ban earlier this year. The law bars adults from acquiring abortion pills for minors or traveling with a minor out of state for the purpose of getting an abortion without the consent of the minor’s guardian.Currently, no one has been prosecuted under Idaho’s law, but an Idaho woman and son were charged with kidnapping after accusations of the pair taking the son’s minor girlfriend out of state to get an abortion.
The trafficking law was put on hold by a federal judge last month and will not be enforced until the courts make a final decision on whether the law is constitutional. Undeniably, the law further complicates Idaho’s landscape for abortion access. The ban brings into question what pregnant patients will need to do if a physician deems they need to terminate their pregnancy to preserve their health, but they would have run out of options if Idaho’s abortion ban and trafficking law are both enforced in the future.
The Freedom From Religion Foundation is a national nonprofit organization with 40,000 members across the country, including members in Idaho. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism.